Bereskin Estate, Re, 2015 MBCA 33

• Judge: Beard, Burnett and Mainella, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: December 02, 2014
• Jurisdiction: Manitoba
• Citations: 2015 MBCA 33;(2015), 319 Man.R.(2d) 16 (CA)

Bereskin Estate, Re (2015), 319 Man.R.(2d) 16 (CA);

      638 W.A.C. 16

MLB headnote and full text

Temp. Cite: [2015] Man.R.(2d) TBEd. AP.025

Marvin Sheppy Zindler (applicant/appellant) v. The Salvation Army, The Jewish Foundation of Manitoba, Heart and Stroke Foundation of Manitoba Inc. and Cancer Care Manitoba (respondents/respondents)

(AI 14-30-08217; 2015 MBCA 33)

Indexed As: Bereskin Estate, Re

Manitoba Court of Appeal

Beard, Burnett and Mainella, JJ.A.

April 13, 2015.

Summary:

The applicant applied for directions respecting testamentary documents.

The Manitoba Court of Queen's Bench, in a decision reported at 307 Man.R.(2d) 74, decided the issues accordingly. The applicant appealed.

The Manitoba Court of Appeal dismissed the appeal.

Editor's Note: In a prior application, the applicant, Marvin Schindler, was removed as executor as the estate for conflict of interest. See (2013), 296 Man.R.(2d) 123, affd. (2014), 303 Man.R.(2d) 8; 600 W.A.C. 8 (C.A.).

Practice - Topic 8296

Costs - Appeals - Appeals from order for costs - General - Zindler applied for directions respecting testamentary documents - The application judge decided the issues - Zindler appealed - The Manitoba Court of Appeal stated that "Zindler alleges, for the first time in his factum, that the application judge erred in making an award of costs without first permitting the parties to make submissions in that regard, even though, at the end of the hearing before the application judge, he reserved the right to make submissions on costs following the release of the application judge's decision. His position is that he should have received solicitor-client costs, rather than party and party costs. This issue is not set out as a ground of appeal in the notice of appeal, so I am of the view that the matter is not properly before the court and I would decline to decide the issue." - See paragraphs 19 and 20.

Practice - Topic 8800.1

Appeals - General principles - Duty of appellate court regarding findings of mixed law and fact by a trial judge - [See Practice - Topic 8800.2 ].

Practice - Topic 8800.2

Appeals - General principles - Duty of appellate court regarding findings of law - The Manitoba Court of Appeal stated that "To the extent that the interpretation of a will is to be done in the context of the surrounding circumstances, that involves a question of mixed fact and law ..., unless there is an extricable point of law, which is then subject to a correctness standard. ... Thus, the applicable standard of review regarding the interpretation of a will is now that of palpable and overriding error." - See paragraph 10.

Practice - Topic 9012.2

Appeals - Restrictions on argument on appeal - Challenging trial judge's conclusion on issue not appealed - [See Practice - Topic 8296 ].

Wills - Topic 5183

Construction - General - Evidence and proof - Intention of testator - The Manitoba Court of Appeal stated that "... the modern approach to the interpretation of a will is to determine the subjective intention of the maker of the will. This is done by looking at the words used in the context of the circumstances known to the maker at the time of signing the document, whether or not the words are ambiguous, to assist in determining the maker's intention. ...  This is very similar to the modern approach to the interpretation of a contract, which is to give effect to the intention of the parties as expressed in their agreement, the goal being to determine the intent of the parties at the time of the execution of the contract. To do so, the contract must be considered in the context of the surrounding facts or the 'factual matrix'  ..." - See paragraphs 8 and 9.

Wills - Topic 5183

Construction - General - Evidence and proof - Intention of testator - [See Wills - Topic 7812 ].

Wills - Topic 8546

Evidence and proof - Extrinsic evidence - Of intention of testator - [See first Wills - Topic 5183 and Wills - Topic 7812 ].

Wills - Topic 8550

Evidence and proof - Extrinsic evidence - Of surrounding circumstances to interpret will - [See first Wills - Topic 5183 and Wills - Topic 7812 ].

Wills - Topic 7812

Construction - Quantity of interest taken - Interpretation of particular words and phrases - Bank account - In a 1995 codicil, a testatrix amended her will to provide that "...  although I am transferring all my Shares in Margbell Holdings Ltd. to my dear nephew, MARVIN ZINDLER, that the said transfer shall not include any monies in the bank account of the said Company standing to its credit at the date of my death ..." - Zindler argued that the codicil was of no force and effect because there was no evidence that Margbell had any monies in a "bank account" at the date of the testatrix's death - The application judge rejected the arguments - In 1995 and thereafter, the testatrix simply used her own personal bank account for corporate expenses - The specific reference to "the bank account" was not a reference to a bank account that the corporation might establish at some future date, but a specific reference to the only account that Margbell had at the time containing cash or other investment assets, namely her National Bank Financial Ltd. account - This was so, even though the National Bank Financial Ltd. was not a bank in the strict sense of the word - On appeal, the Manitoba Court of Appeal found a palpable error in the trial judge's decision because the Margbell investments were not held at National Bank Financial Ltd. at the date of the codicil, but with Investors Group - However, the error was hardly overriding, given that neither institution was a bank within the meaning of the Bank Act, and the funds at either institution would not be held in a bank account, as that term was used by Zindler - Thus, this error did not affect the application judge's analysis or decision - See paragraphs 16 to 18 - The court rejected Zindler's argument that the court was bound by a presumption that words would be interpreted in their ordinary, literal meaning - The application judge found that, in interpreting a will, the object was to determine the testator's actual or subjective intent, as opposed to an objective intention presumed by law - Evidence of surrounding circumstances could be taken into account before a court reached any final determination of the meaning of words - The application judge made no error of law regarding the law he applied or the factors he considered - See paragraphs 11 to 15.

Cases Noticed:

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 4].

Alberta Giftwares Ltd. v. R., [1974] S.C.R. 584, refd to. [para. 5].

Wernicke Estate, Re (2011), 385 Sask.R. 7; 536 W.A.C. 7; 2011 SKCA 95, refd to. [para. 5].

Prevost Estate v. Prevost Estate (2013), 327 N.S.R.(2d) 152; 1036 A.P.R. 152; 2013 NSCA 20, refd to. [para. 5].

MacDonald v. McCormick (2009), 274 N.S.R.(2d) 258; 874 A.P.R. 258; 2009 NSCA 12, refd to. [para. 5].

King v. Operating Engineers Training Institute of Manitoba Inc. (2011), 270 Man.R.(2d) 63; 524 W.A.C. 63; 2011 MBCA 80, refd to. [para. 6].

Creston Moly Corp. v. Sattva Capital Corp., [2014] 2 S.C.R. 633; 461 N.R. 335; 358 B.C.A.C. 1; 614 W.A.C. 1; 2014 SCC 53, refd to. [para. 7].

Haidl et al. v. Sacher et al. (1979), 2 Sask.R. 93 (C.A.), refd to. [para. 14].

Robinson Estate, Re (2011), 282 O.A.C. 189; 2011 ONCA 493, refd to. [para. 14].

Lubberts Estate, Re (2012), 548 A.R. 1; 2012 ABQB 506, refd to. [para. 14].

Bergey Estate, Re (1995), 103 Man.R.(2d) 202 (Q.B.), refd to. [para. 14].

Eliuk Estate, Re (2010), 258 Man.R.(2d) 6; 499 W.A.C. 6; 2010 MBCA 58, refd to. [para. 14].

Authors and Works Noticed:

MacKenzie, James, Feeney's Canadian Law of Wills (4th Ed. 2000) (Looseleaf), para. 10.1 [paras. 13, 14].

Counsel:

C.R. Huband, for the appellant;

A.L. Southall, for the respondents.

This appeal was heard on December 2, 2014, by Beard, Burnett and Mainella, JJ.A., of the Manitoba Court of Appeal. Beard, J.A., delivered the following decision for the court on April 13, 2015.