Darichuk Estate, Re, (1986) 50 Sask.R. 8 (SurCt)

• Judge: Geatros, J.
• Case Date: July 15, 1986
• Jurisdiction: Saskatchewan
• Citations: (1986), 50 Sask.R. 8 (SurCt)

Darichuk Estate, Re (1986), 50 Sask.R. 8 (SurCt)

MLB headnote and full text

Re Darichuk Estate

(No. 4 A.D. 1980)

Indexed As: Darichuk Estate, Re

Saskatchewan Surrogate Court

Judicial Centre of Humboldt

Geatros, J.

July 15, 1986.

Summary:

An executor applied for advice and directions from the court in construing the residual clause of the testator's will. The issue concerned the meaning to be attributed to the words "my dear grandchildren". There were four claimants to the residue.

The Saskatchewan Surrogate Court held that all the claimants were entitled to share in the residue.

Wills - Topic 7008

Construction - Persons entitled to take - Interpretation - "Grandchildren" - A testator left the residue of his estate to "my dear grandchildren who are living at the time of my death" - The testator had one legitimate grandchild - He had one illegitimate grandchild who was legitimized by her parents' subsequent marriage - There was also another illegitimate grandchild whose parents never married, but whose father (the testator's son) obtained legal custody - A son of the testator raised as his own a child of his common law wife - The Saskatchewan Surrogate Court interpreted the testator's intention and held that he meant to benefit all of the above children.

Words and Phrases

Illegitimate child - The Saskatchewan Surrogate Court held that the words "illegitimate child" as found in s. 33 of the Wills Act, R.S.S. 1978, c. W-14, included a grandchild - See paragraph 5.

Cases Noticed:

Bellanger v. Pester, [1980] 2 W.W.R. 155, refd to. [para. 5].

Gage, Re (1962), 31 D.L.R.(2d) 662, refd to. [para. 15].

Hamilton v. Ritchie, [1894] A.C. 310, appld. [para. 17].

Towne v. Eisner (1918), 245 U.S. 418, refd to. [para. 17].

Mullens, Re (1949), 21 M.P.R. 385, refd to. [para. 18].

Marks v. Marks (1908), 40 S.C.R. 210, refd to. [para. 18].

Haidl v. Sacher, [1980] 1 W.W.R. 293; 2 Sask.R. 93, refd to. [para. 19].

Connally, Re (1965), 47 D.L.R.(2d) 465, refd to. [para. 26].

Statutes Noticed:

Wills Act, R.S.S. 1978, c. W-14, sect. 33 [paras. 4, 14-16, 25].

Legitimacy Act, R.S.S. 1978, c. L-13, sect. 2(1) [paras. 4, 16, 24].

Authors and Works Noticed:

Williams on Wills (5th Ed.), p. 570 [para. 16].

Feeney, Thomas G., The Canadian Law of Wills, vol. 2, pp. 31 [para. 17]; 50 [para. 18]; 56 [para. 30].

Counsel:

Darcia G. Shirr, for the applicant Philip Leonard Kotyk;

David F. Holt, for Lorraine Iola Darichuk;

Ray C. Rutman, for Lynn Marie Darichuk;

Marilyn Scott, for Tracy Marie Mackie;

Robert Darichuk appearing for himself.

This application was heard before Geatros, J., of the Saskatchewan Surrogate Court, Judicial Centre of Humbold, whose decision was delivered on July 15, 1986.