Jankowski v. Pelek Estate, (1995) 99 Man.R.(2d) 191 (QB)

• Judge: Smith, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: February 14, 1995
• Jurisdiction: Manitoba
• Citations: (1995), 99 Man.R.(2d) 191 (QB)

Jankowski v. Pelek Estate (1995), 99 Man.R.(2d) 191 (QB)

MLB headnote and full text

Joseph Jankowski (applicant) v. Joseph Richard Hnidan, as Executor for the Estate of Agafia Pelek, also known as Agnes Pelek and also known as Agaphia Pelech and also known as Agnes Jankowski (respondent)

(File No. PR 94-01-34329)

Indexed As: Jankowski v. Pelek Estate

Manitoba Court of Queen's Bench

Winnipeg Centre

Smith, J.

February 14, 1995.

Summary:

A clause in a testatrix's will directed that the residue of her estate be transferred to her executor "to deal with as he may in his dis­cre­tion decide upon". The applicant, the tes­tatrix's husband, sought an order declaring that the clause was void for uncertainty.

The Manitoba Court of Queen's Bench dismissed the application.

Executors and Administrators - Topic 2503

Duties and powers of executors and ad­ministrators - Payment of legacies - Dis­cretion of executor - General - [See Wills - Topic 4241 ].

Wills - Topic 4241

Failure of gifts - Uncertainty - General - A clause in a testatrix's will directed that the residue of her estate be transferred to her executor "to deal with as he may in his discretion decide upon" - The applicant, the testatrix's husband, sought an order declaring that the clause was void for uncertainty - The Manitoba Court of Queen's Bench dismissed the application stating that the clause was not void for uncertainty - The court interpreted the clause accordingly.

Wills - Topic 5277

Construction - General - Particular words and phrases - "To deal with as he may in his discretion decide upon" - [See Wills - Topic 4241 ].

Cases Noticed:

Nicholls Estate, Re (1987), 18 O.A.C. 254; 34 D.L.R.(4th) 321 (C.A.), folld. [para. 13].

Keen Estate, Re; Evershed v. Griffiths, [1937] 1 All E.R. 452 (C.A.), refd to. [para. 17, Appendix].

Mihalopulos, Re (1956), 19 W.W.R.(N.S.) 118 (Alta. T.D.), refd to. [para. 17, Ap­pendix].

Rees Will Trusts, Re; Williams v. Hop­kins, [1949] 2 All E.R. 1003 (C.A.), refd to. [para. 17, Appendix].

Hayman v. Nicoll, [1944] S.C.R. 253, refd to. [para. 17, Appendix].

Yakimischak Estate, Re (1980), 8 Man.R.(2d) 19; 10 E.T.R. 174 (Q.B.), refd to. [para. 17, Appendix].

Kusmider v. Yakimischak - see Yakimis­chak Estate, Re.

Klassen Estate v. Klassen et al., [1986] 5 W.W.R. 746; 50 Sask.R. 64 (Q.B.), refd to. [para. 17, Appendix].

Selman Estate, Re (1957), 23 W.W.R.(N.S.) 349 (B.C.S.C.), refd to. [para. 17, Appendix].

Connell v. Connell (1906), 37 S.C.R. 404, refd to. [para. 17, Appendix].

Gilkinson, Re (1930), 38 O.W.N. 26 (H.C.), refd to. [para. 17, Appendix].

Snowden, Re; Smith v. Spowage, [1979] 1 Ch. 528, refd to. [para. 17, Appendix].

Statutes Noticed:

Intestate Succession Act, S.M. 1989-90, c. 43; C.C.S.M., c. I-85, generally [para. 2].

Wills Act, R.S.M. 1988, c. W-150; C.C.S.M., c. W-150, sect. 3 [para. 7].

Authors and Works Noticed:

Waters, D.W.M., The Law of Trusts in Canada (2nd Ed. 1984), pp. 215 to 238 [para. 17, Appendix].

Counsel:

Edward Tawkin, for the applicant;

Chrys W. Iwanchuk, for the respondent, Executor;

John S. Michaels, for John Bialowas, Czeslaw Bialowas, Piotr Bialowas, Tomasz Bialowas and Brian Bialowas, potential beneficiaries.

This application was heard before Smith, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the follow­ing judgment on February 14, 1995.