Garwood v. Garwood Estate,

• Jurisdiction: Manitoba
• Judge: Joyal
• Neutral Citation: 2013 MBQB 133
• Citation: (2013), 293 Man.R.(2d) 289 (QB),2013 MBQB 133,293 ManR(2d) 289,(2013), 293 ManR(2d) 289 (QB),293 Man.R.(2d) 289
• Date: 05 June 2013
• Court: Court of Queen's Bench of Manitoba (Canada)

Garwood v. Garwood Estate (2013), 293 Man.R.(2d) 289 (QB)

MLB headnote and full text

Temp. Cite: [2013] Man.R.(2d) TBEd. JL.024

In The Matter Of: The Estate of Jessie Garwood

James Hunter Garwood (applicant) v. James Hunter Garwood as Executor of the Estate of Jessie Garwood (respondent)

(PR 04-01-66776)

Karen Garwood (applicant) v. James Hunter Garwood as Executor of the Estate of Jessie Garwood (respondent)

(PR 05-01-70914)

(2013 MBQB 133)

Indexed As: Garwood v. Garwood Estate

Manitoba Court of Queen's Bench

Winnipeg Centre

Joyal, C.J.Q.B.

June 5, 2013.

Summary:

Garwood's will named her son, James, and his wife, Karen, as residuary beneficiaries, provided that they were living together at the date of her death (the conditional phrase). James obtained the probate of the will in August 2004. Karen and James separated. In November 2005, James applied to set aside the grant of probate and to have the court require proof in solemn form of the will or permit him to probate an earlier will. Karen applied for an order requiring James to pass accounts.

The Manitoba Court of Queen's Bench, in a decision reported at 211 Man.R.(2d) 170, refused to set aside the grant of probate. The court ordered James to, inter alia, pass his accounts and to repay the estate $3,000 plus interest from the date on which he improperly withdrew the money. James appealed the orders.

The Manitoba Court of Appeal, in a decision reported at 225 Man.R.(2d) 30; 419 W.A.C. 30, allowed the appeal from the refusal to revoke the grant of probate and referred the matter to the Queen's Bench for the necessary directions that there be a trial. The court also allowed the appeal from the judgment granted pursuant to Karen's application and left it to the Queen's Bench to determine whether to adjourn her application pending the disposition of the trial or to hear the application at the same time as the trial. The matter was designated for case management. The trial was not precipitated and issues respecting production and discovery delayed the setting of the matters down for adjudication. Adjudication was further delayed by a police investigation which immobilized the case for almost three years. James moved for the following alternative relief: (1) summary judgment under rule 20.01 of the Queen's Bench Rules ruling that the will's conditional phrase was invalid, thereby leaving no genuine issue for determination insofar as Karen's claim for distribution; (2) an order under rule 21.01 ruling that the conditional phrase was invalid; and (3) judgment under rule 38.09 ruling that the conditional phase was invalid.

The Manitoba Court of Queen's Bench dismissed the motion. The court directed that a scheduled meeting with counsel be a pre-trial conference at which time trial dates were to be set for the determination of, amongst other things, the issues identified by the Court of Appeal. It was anticipated that the validity of the conditional phrase would also be a question requiring determination at trial.

Practice - Topic 3071

Applications and motions - Applications - General - Garwood's will named her son, James, and his wife, Karen, as residuary beneficiaries, provided that they were living together at the date of her death (the conditional phrase) - James obtained the probate of the will in August 2004 - Karen and James separated - Karen applied for an order directing that James, as executor, make an immediate interim distribution to her as one of the residuary beneficiaries - James applied to set aside the grant of probate and to have the court require proof in solemn form of the will or permit him to probate an earlier will - James' application was dismissed and Karen's application was granted - The decision was overturned on appeal and the matter was referred to the Queen's Bench for the necessary direction for trial - Delays ensued - James moved under rule 38.09 of the Queen's Bench Rules for a ruling that the conditional phrase was invalid and dismissing Karen's application - The Manitoba Court of Queen's Bench noted that rule 38.09 contemplated relief or direction on an application - The court assumed, without deciding, that rule 38.09 permitted the relief sought insofar as James had brought the motion in the context of a main application - The construction and interpretation of the conditional phrase required some reference to the circumstances surrounding the making of the will - Given the inadequate evidentiary foundation, rule 38.09 was not the appropriate manner of disposing of the parties' applications - See paragraphs 59 to 63.

Practice - Topic 3664

Evidence - Affidavits - Striking out - Hearsay - On the applicant's motion for a pretrial determination of a question of law, the applicant sought to admit affidavit evidence - The Manitoba Court of Queen's Bench refused to admit the affidavit as it was based on hearsay and, in some cases, double hearsay - Notwithstanding the fact that the affiant was not cross-examined on her affidavit, an otherwise inadmissible document was not suddenly rendered more reliable or, in this case, admissible because of counsel's inaction - See paragraphs 39 to 42.

Practice - Topic 5260

Trials - General - Trial of preliminary issues - General principles - When available or appropriate - A residual beneficiary under a will applied for an order directing that the executor make an immediate interim distribution to her - The executor applied to set aside the grant of probate and to have the court require proof in solemn form of the will or permit him to probate an earlier will - The executor's application was dismissed and the beneficiary's application was allowed - The decision was overturned on appeal and the matter was referred to the Queen's Bench for the necessary direction for trial - Delays ensued - The executor moved under rule 21.01 of the Queen's Bench Rules for a pretrial ruling on a question of law (whether a conditional phrase in the will's residual clause was invalid) - The Manitoba Court of Queen's Bench held that rule 21.01 was unavailable where the executor had initiated the matter by notice of application - Further, while the construction of a will's legal effect was usually a question of law, questions of mixed fact and law were raised as the conditional phrase's construction and interpretation required an examination of the surrounding circumstances - Alternatively, the court would have concluded that the phrase's ordinary, primary and common sense meanings were not only clear but discernible - Even if the phrase was ambiguous or unclear, the possibility existed that the surrounding circumstances might have assisted in resolving the ambiguity and therefore the motion should not be disposed of under rule 21.01 - See paragraphs 37 to 58.

Practice - Topic 5261

Trials - General - Trial of preliminary issues - Issues of law - [See Practice - Topic 5260 ].

Practice - Topic 5262.1

Trials - General - Trial of preliminary issues - Issues of mixed law and fact - [See Practice - Topic 5260 ].

Practice - Topic 5262.2

Trials - General - Trial of preliminary issues - Admissibility of evidence - [See Practice - Topic 3664 ].

Practice - Topic 5268

Trials - General - Trial of preliminary issues - Bars - [See Practice - Topic 5260 ].

Practice - Topic 5269

Trials - General - Trial of preliminary issues - Evidence - [See Practice - Topic 3664 ].

Practice - Topic 5702

Judgments and orders - Summary judgments - Jurisdiction or when available or when appropriate - Garwood's will named her son, James, and his wife, Karen, as residuary beneficiaries, provided that they were living together at the date of her death (the conditional phrase) - James obtained the probate of the will in August 2004 - Karen and James separated - Karen applied for an order directing that James, as executor, make an immediate interim distribution to her as one of the residuary beneficiaries - James applied to set aside the grant of probate and to have the court require proof in solemn form of the will or permit him to probate an earlier will - James' application was dismissed and Karen's application was granted - The decision was overturned on appeal and the matter was referred to the Queen's Bench for the necessary direction for trial - Delays ensued - James moved under rule 20.01 of the Queen's Bench Rules for summary judgment ruling that the will's conditional phrase was invalid, thereby leaving no genuine issue for determination insofar as Karen's claim for distribution - The Manitoba Court of Queen's Bench dismissed the motion - Summary judgment under rule 20.01 was unavailable where the dispute was commenced with a notice of application - The "unusual" or "unique" circumstances did not open the matter up to summary judgment - See paragraphs 20 to 36.

Cases Noticed:

Homestead Properties (Canada) Ltd. v. Sekhri et al. (2007), 214 Man.R.(2d) 148; 395 W.A.C. 148; 2007 MBCA 61, refd to. [para. 21].

Burnie v. Canadian Cancer Society, [1997] 6 W.W.R. 344 (Man. C.A.), folld. [para. 24].

Wernicke Estate, Re (2011), 385 Sask.R. 7; 536 W.A.C. 7; 2011 SKCA 95, refd to. [para. 46].

MacDonald v. McCormick (2009), 274 N.S.R.(2d) 258; 874 A.P.R. 258; 2009 NSCA 12, refd to. [para. 46].

Tucker Estate, Re, [1994] 2 W.W.R. 1; 92 Man.R.(2d) 41; 61 W.A.C. 41 (C.A.), refd to. [para. 47].

Marks v. Marks (1908), 40 S.C.R. 210, refd to. [para. 48].

Charter v. Charter, L.R. 7 H.L. 365, refd to. [para. 48].

Perrin v. Morgan, [1943] A.C. 399 (H.L.), refd to. [para. 56].

Statutes Noticed:

Rules of Court (Man.), Queen's Bench Rules, rule 20.01 [para. 20]; rule 21.01 [para. 37]; rule 38.09 [para. 59].

Authors and Works Noticed:

Feeney, Thomas G., The Canadian Law of Wills (3rd Ed. 1987), vol. 2, p. 247 [para. 53].

Counsel:

James B. Harvie, for J.H. Garwood;

Sharon L. Tod, for K. Garwood.

This motion was heard by Joyal, C.J.Q.B., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following judgment on June 5, 2013.