Cockle Estate, Re, (1997) 203 A.R. 18 (SurCt)

JudgeRitter, J.
Case DateApril 29, 1997
JurisdictionAlberta
Citations(1997), 203 A.R. 18 (SurCt)

Cockle Estate, Re (1997), 203 A.R. 18 (SurCt)

MLB headnote and full text

Temp. Cite: [1997] A.R. TBEd. MY.027

In The Matter Of the Estate of Edwin Harold Cockle, late of the Town of Mannville, in the Province of Alberta, retired, farmer, deceased.

James Brandrick (applicant) v. Kathleen Cockle, by her trustees and guardians Nita Dianne Magdiak and James Brian Jackson, Beatrice Prymak, Nita Dianne Magdiak, James Brian Jackson, James Brandrick, Dorothy Brandrick, The Canadian Bible Society, The Alberta Paraplegic Foundation (Northern Division), Loyal Orange Lodge Association of Mannville, McQueen Memorial United Church of Mannville, Alberta, and Her Majesty The Queen as presented by Alberta Environmental Protection Fish and Wildlife Services (respondents)

(Action Nos. 105017 and 101139)

Indexed As: Cockle Estate, Re

Alberta Surrogate Court

Judicial District of Edmonton

Ritter, J.

April 29, 1997.

Summary:

This matter involved the interpretation of s. 5 of the Wills Act and, specifically, whether a testator could acknowledge his signature to witnesses without the witnesses having seen or being able to see the testa­tor's signature on the purported will.

The Alberta Surrogate Court held that s. 5 of the Act required the signature which was acknowledged to be visible to the attesting witnesses.

Wills - Topic 93

Testamentary instruments - Mutual wills - Joint wills - The Alberta Surrogate Court held that a will was not a joint will where (1) it was not properly executed under s. 5 of the Wills Act and (2) the testators left nothing to one another - See paragraphs 39 to 40.

Wills - Topic 1556

Preparation and execution - Attestation - Acknowledgment or making of signature by testator in presence of witnesses - A testatrix asked two witnesses to sign her and her husband's will - The testatrix concealed part of the document so that any signatures were not visible to the attesting witnesses - The witnesses looked for a signature, but were prevented by the testa­trix from seeing one - At issue was whether the testators had acknowledged their signatures to the witnesses - The Alberta Surrogate Court held that the will was not properly attested under s. 5(b) of the Wills Act - For a will to be acknowl­edged, at the very least, a signature must be visible to the witnesses if they looked for one - See paragraphs 20 to 38.

Wills - Topic 1557

Preparation and execution - Attestation - Signature of attesting witnesses - A testa­tor remained in the driver's seat of his truck while witnesses signed his will on the passenger's side of the hood, at his wife's request - At issue was whether the witnesses had signed in the testator's pres­ence under s. 5(c) of the Wills Act - The Alberta Surro­gate Court held that "pre­sence of the testa­tor" meant a knowledge­able testator, i.e., a testator cognizant of what was going on when the will was being signed - The court found that the testator was present during the signing of the will where he had acknow­ledged the witnesses' presence; the entire event had occurred in his full view and within hear­ing distance; and he had thanked the witnesses - See para­graphs 17 to 19.

Cases Noticed:

Hudson v. Parker (1844), 1 Rob. & Eccl. 14; 163 E.R. 948, refd to. [para. 21].

Lloyd v. Roberts (1858), 14 E.R. 871 (P.C.), refd to. [para. 23].

Smith v. Smith (1866), L.R. 1 P. & D. 143, dist. [para. 25].

Gwillim v. Gwillim (1859), 3 Sw. & Tr. 200, refd to. [para. 26].

Beckett v. Howe (1869), L.R. 2 P. & D. 1, refd to. [para. 27].

Janaway (In the Goods of) (1874), 23 W.R. 385, refd to. [para. 28].

Gunstan (In the Goods of); Blake v. Blake (1882), 7 P.D. 102 (C.A.), refd to. [para. 29].

Daintree v. Butcher & Fasulo (1888), 13 P.D. 102 (C.A.), refd to. [para. 30].

McNeil v. Cullen (1905), 35 S.C.R. 510, refd to. [para. 31].

Walterhouse Estate, Re (1922), 65 D.L.R. 670 (Ont. Surr. Ct.), refd to. [para. 33].

Amos, Re, [1954] 2 D.L.R. 574 (Ont. H.C.), refd to. [para. 34].

Hudson v. Bower (1968), 67 W.W.R.(N.S.) 564 (Alta. C.A.), refd to. [para. 36].

Balcolm Estate, Re (1975), 22 N.S.R.(2d) 707; 31 A.P.R. 707 (Prob. Ct.), refd to. [para. 36].

Mitchell, Re (1960), 32 W.W.R.(N.S.) 337 (Alta. C.A.), refd to. [para. 36].

Statutes Noticed:

Wills Act, R.S.A. 1990, c. W-11, sect. 5(b), sect. 5(c) [para. 1].

Authors and Works Noticed:

Jarman, Treatise on Wills, generally [para. 33].

Counsel:

Gregory C. Empson (Galbraith Empson), for the applicant, James Brandrick;

Jennifer J. Klimek (Kuchertz & Associ­ates), for Nita Magdiak and James Jack­son;

J. Martin Hattersley, Q.C., (Edney, Hattersley & Dolphin), for the Canadian Bible Society;

Douglas W. Matson (Coulter, Kerby & Power), for the Alberta Paraplegic Foun­dation;

David Kinloch (Alberta Justice), for the provincial Crown.

This matter was heard before Ritter, J., of the Alberta Surrogate Court, Judicial District of Edmonton, who delivered the following judgment on April 29, 1997.

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1 practice notes
  • Cockle Estate, Re, (1998) 216 A.R. 191 (CA)
    • Canada
    • Alberta Court of Appeal (Alberta)
    • June 3, 1998
    ...having seen or being able to see the testator's signature on the purported will. The Alberta Surrogate Court, in a decision reported at 203 A.R. 18, held that s. 5 of the Act required the signature which was acknowledged to be visible to the attesting witnesses. The decision was appealed. T......
1 cases
  • Cockle Estate, Re, (1998) 216 A.R. 191 (CA)
    • Canada
    • Alberta Court of Appeal (Alberta)
    • June 3, 1998
    ...having seen or being able to see the testator's signature on the purported will. The Alberta Surrogate Court, in a decision reported at 203 A.R. 18, held that s. 5 of the Act required the signature which was acknowledged to be visible to the attesting witnesses. The decision was appealed. T......