Green Estate, Re, (2001) 300 A.R. 54 (QB)

JudgeWatson, J.
CourtCourt of Queen's Bench of Alberta (Canada)
Case DateSeptember 20, 2001
Citations(2001), 300 A.R. 54 (QB);2001 ABQB 835

Green Estate, Re (2001), 300 A.R. 54 (QB)

MLB headnote and full text

Temp. Cite: [2001] A.R. TBEd. OC.039

In The Matter Of The Estate Of: Arthur Reginald Green

(Action No. ES03 113262; 2001 ABQB 835)

Indexed As: Green Estate, Re

Alberta Court of Queen's Bench

Judicial District of Edmonton

Watson, J.

October 1, 2001.

Summary:

In 1997, a testator executed a will which divided his estate equally between his six children. His testamentary wishes changed, and in 1999 he executed a new will in the presence of his lawyer which greatly reduced the share of his estate to be received by three of his children (DG et al.). In 2000, the testator informed his lawyer that he had lost his 1999 will and wished to execute a new one in identical terms. This he did, again in the presence of his lawyer. Ten weeks later, the testator died. An application was brought to have an unsigned copy of the 2000 will (provided by the lawyer) admitted to probate. The application was opposed by DG et al., who asserted that a presumption of revocation by destruction should be applied, with a resulting intestatacy.

The Alberta Court of Queen's Bench admitted the copy of the 2000 will to probate. The court held that the presumption of revocation by destruction was rebutted by the circumstantial evidence in this case. Further, there was no evidence to suggest why the testator's intentions would have changed so dramatically in the short time between the execution of the 2000 will and his death.

Executors and Administrators - Topic 1030

Grant of probate - Application for grant - Where will is lost - In 1999, a testator executed a will in the presence of his lawyer which essentially "cut out" three of his children (DG et al.) from sharing in his estate - In 2000, the testator lost his 1999 will and executed a new one in identical terms - Ten weeks later, the testator died - An application was brought to have an unsigned copy of the 2000 will (provided by the lawyer) admitted to probate - DG et al. asserted that a presumption of revocation by destruction should be applied, with a resulting intestatacy - The Alberta Court of Queen's Bench admitted the copy of the 2000 will to probate - The court held that the presumption of revocation by destruction was rebutted by the circumstantial evidence in this case - Further, there was no evidence to suggest why the testator's intentions would have changed so dramatically in the short time between the execution of the 2000 will and his death.

Wills - Topic 2334

Revocation - By act of testator - Intention - [See Executors and Administrators - Topic 1030 ].

Wills - Topic 2342

Revocation - By act of testator - Lost will - Presumption of revocation where will is lost - [See Executors and Administrators - Topic 1030 ].

Cases Noticed:

Compton Petroleum Corp. v. Alberta Power Ltd. (1999), 242 A.R. 3 (Q.B.), refd to. [para. 8, footnote 1].

Booth et al. v. Finch et al. (1996), 82 B.C.A.C. 97; 133 W.A.C. 97 (C.A.), refd to. [para. 9, footnote 2].

Elliott v. Amante (2000), 268 A.R. 70 (Q.B.), revd. [2000] A.R. Uned. 400 (C.A.), refd to. [para. 10, footnote 3].

U.B.'s Autobody Ltd. et al. v. Reid's Welding (1981) Inc. et al. (1999), 258 A.R. 325 (Q.B.), refd to. [para. 11, footnote 4].

590988 Alberta Ltd. et al. v. 728699 Alberta Ltd. et al., [1999] A.R. Uned. 222; 30 C.P.C.(4th) 201 (Q.B.), dist. [para. 11, footnote 5].

Theriault Estate, Re (1997), 157 N.S.R.(2d) 398; 462 A.P.R. 398 (C.A.), refd to. [para. 38, footnote 10].

Perry, Re, [1925] 1 D.L.R. 930; 56 O.L.R. 278 (C.A.), refd to. [para. 41, footnote 12].

Sigurdson v. Sigurdson, [1935] 4 D.L.R. 529 (S.C.C.), affing. [1935] 1 W.W.R. 265; 43 Man.R. 1; [1935] 2 D.L.R. 445 (C.A.), refd to. [para. 41, footnote 13].

Allen v. Morrison, [1900] A.C. 604 (P.C.), refd to. [para. 41, footnote 14].

Sugden v. St. Leonards (Lord) (1876), L.R. 1 P.D. 154 (C.A.), refd to. [para. 44, footnote 15].

Director of Public Prosecutions v. McGreevy, [1973] 1 All E.R. 503; 57 Cr. App. Rep. 424; [1973] 1 W.L.R. 276 (H.L.), refd to. [para. 46, footnote 16].

Hodge's Case (1838), 2 Lew. C.C. 227; 168 E.R. 1136, refd to. [para. 47, footnote 17].

Welch v. Phillips (1836), 1 Moo. P.C.C. 2999 (P.C.), refd to. [para. 47, footnote 18].

R. v. Cooper, [1978] 1 S.C.R. 860; 14 N.R. 181; 37 C.R.N.S. 1; 34 C.C.C.(2d) 18; 74 D.L.R.(3d) 731, reving. (1975), 7 O.R.(2d) 429 (C.A.), refd to. [para. 47, footnote 19].

MacBurnie v. Patriquin (1975), 14 N.S.R.(2d) 680; 11 A.P.R. 680 (C.A.), refd to. [para. 48, footnote 20].

Lefebvre v. Major, [1930] 2 D.L.R. 532 (S.C.C.), reving. [1929] 3 D.L.R. 248; 64 O.L.R. 43 (C.A.), refd to. [para. 49, footnote 21].

Brimicombe et al. v. Brimicombe Estate (2000), 184 N.S.R.(2d) 315; 573 A.P.R. 315 (C.A.), refd to. [para. 50, footnote 22].

Millham Estate v. Toronto-Dominion Bank et al. (2001), 150 B.C.A.C. 140; 245 W.A.C. 140 (C.A.), refd to. [para. 51, footnote 23].

Flaman Estate, Re (1997), 156 Sask.R. 305 (Q.B.), refd to. [para. 53, footnote 24].

Perry, Re, [1925] 1 D.L.R. 930; 56 O.L.R. 278 (C.A.), refd to. [para. 54, footnote 25].

Wagenhoffer Estate, Re (1983), 26 Sask.R. 30 (Surr. Ct.), revd. (1985), 36 A.C.W.S.(2d) 94; 22 E.T.R. 60 (C.A.), leave to appeal refused (1986), 69 N.R. 79; 48 Sask.R. 160 (S.C.C.), refd to. [para. 54, footnote 26].

Dreger Estate, Re (1982), 38 A.R. 44; 13 E.T.R. 212 (N.W.T.S.C.), refd to. [para. 57, footnote 27].

Behie Estate, Re (1977), 24 N.S.R.(2d) 1; 35 A.P.R. 1 (C.A.), affing. (1977), 23 N.S.R.(2d) 361; 32 A.P.R. 361 (Prob. Ct.), refd to. [para. 58, footnote 28].

Alston v. Wagar Estate (1996), 10 E.T.R.(2d) 274 (Ont. Gen. Div.), refd to. [para. 58, footnote 29].

Leighton Estate, Re (1997), 188 N.B.R.(2d) 388; 480 A.P.R. 388; 17 E.T.R.(2d) 155 (Prob. Ct.), refd to. [para. 59, footnote 30].

Cole et al. v. Cole Estate (1994), 131 N.S.R.(2d) 296; 371 A.P.R. 296 (C.A.), dist. [para. 60, footnote 31].

Statutes Noticed:

Wills Act, R.S.A. 1980, c. W-11, sect. 16, sect. 17, sect. 18 [para. 33].

Authors and Works Noticed:

Feeney, Thomas G., Canadian Law of Wills (4th Ed. 2000) (Service Issues 2000-2001), generally [para. 33, footnote 6]; s. 5.40, pp. 5.12, 5.13 [para. 37, footnote 8]; ss. 5.41, 5.42, p. 5.13 [para. 38, footnote 9]; s. 5.6, p. 5.3 [para. 35, footnote 7]; s. 5.64, p. 5.19 [para. 40, footnote 11].

Counsel:

Gail L. Edwards, for the applicant's son, Donald Green;

Tracey Bristow (Hansma & Bristow), for the respondent.

This summary trial was heard on September 20, 2001, by Watson, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following decision on October 1, 2001.

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3 practice notes
  • Goold Estate, Re, 2016 ABQB 303
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • May 26, 2016
    ...of a will, "must be voluntary, the testator must be of the same state of competence as when a valid Will is created." Re Green (Estate) 2001 ABQB 835 at para 34. [57] Where a testator becomes mentally incapable after executing the Will, the burden shifts to the party alleging revocation to ......
  • Neufeld v Neufeld, 2019 ABCA 33
    • Canada
    • Court of Appeal (Alberta)
    • January 30, 2019
    ...can be proved (among other methods) by evidence of someone who witnessed its signing (Re Whitelaw Estate at para 16; Re Green Estate, 2001 ABQB 835 at paras 15-19, 300 AR 54) or by evidence of the standard practices of the lawyer who prepared the will (Haider v Kalugin, 2008 BCSC 930, at pa......
  • Whitehead Estate, Re, 2010 BCSC 348
    • Canada
    • Supreme Court of British Columbia (Canada)
    • March 17, 2010
    ...it is a true copy and that it was properly executed. [24] In Goudge's Estate , supra., and other cases such as Re: Green Estate , 2001 ABQB 835, and Re: Flaman Estate , [1997] S.J. 442 (Q.B.) evidence was presented by a witness who was able to testify to the proper execution of the wil......
3 cases
  • Goold Estate, Re, 2016 ABQB 303
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • May 26, 2016
    ...of a will, "must be voluntary, the testator must be of the same state of competence as when a valid Will is created." Re Green (Estate) 2001 ABQB 835 at para 34. [57] Where a testator becomes mentally incapable after executing the Will, the burden shifts to the party alleging revocation to ......
  • Neufeld v Neufeld, 2019 ABCA 33
    • Canada
    • Court of Appeal (Alberta)
    • January 30, 2019
    ...can be proved (among other methods) by evidence of someone who witnessed its signing (Re Whitelaw Estate at para 16; Re Green Estate, 2001 ABQB 835 at paras 15-19, 300 AR 54) or by evidence of the standard practices of the lawyer who prepared the will (Haider v Kalugin, 2008 BCSC 930, at pa......
  • Whitehead Estate, Re, 2010 BCSC 348
    • Canada
    • Supreme Court of British Columbia (Canada)
    • March 17, 2010
    ...it is a true copy and that it was properly executed. [24] In Goudge's Estate , supra., and other cases such as Re: Green Estate , 2001 ABQB 835, and Re: Flaman Estate , [1997] S.J. 442 (Q.B.) evidence was presented by a witness who was able to testify to the proper execution of the wil......

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