Jankowski v. Pelek Estate, (1995) 107 Man.R.(2d) 167 (CA)

• Judge: Huband, Helper and Kroft, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: October 03, 1995
• Jurisdiction: Manitoba
• Citations: (1995), 107 Man.R.(2d) 167 (CA)

Jankowski v. Pelek Estate (1995), 107 Man.R.(2d) 167 (CA);

    109 W.A.C. 167

MLB headnote and full text

Joseph Jankowski (applicant/appellant) 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/respondent)

(Suit No. AI 95-30-02223)

Indexed As: Jankowski v. Pelek Estate

Manitoba Court of Appeal

Huband, Helper and Kroft, JJ.A.

December 22, 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, in a decision reported at 99 Man.R.(2d) 191, dismissed the application. The husband appealed.

The Manitoba Court of Appeal, Huband, J.A., dissenting, dismissed the appeal.

Executors and Administrators - Topic 2503

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

Trusts - Topic 1501

Secret trusts - General principles - Secret trust defined - The Manitoba Court of Appeal stated that "[a] secret trust is a trust which a court of equity imposes on a person who has obtained title to property obliging him to hold it for the benefit of the person for whom or purposes for which he knew that it was given ... It arises where a testatrix gives property to a person apparently beneficially, but has communi­cated to that person during his lifetime certain trusts on which the property is to be held. The trust arises outside the will. Any trust obligation ... is hidden from view, revealed only by extrinsic evidence" - See paragraph 107.

Trusts - Topic 1527

Secret trusts - Creation of secret trust - What constitutes a secret trust - [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 trial judge held that the clause was not void for uncertainty and that it created a trust to the executor - The Manitoba Court of Appeal affirmed that the clause was not void, that a secret trust was established and there was no intestacy with respect to the residue of the estate - See paragraphs 67 to 110; 111 to 136.

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:

Karsten (deceased) v. Moore et al., [1953] N.Z.L.R. 456 (S.C.), refd to. [para. 1].

Nicholls Estate, Re (1987), 18 O.A.C. 254; 34 D.L.R.(4th) 321 (C.A.), refd to. [para. 16].

O'Brien v. Condon, [1905] 1 I.R. 51 (Ch. D.), refd to. [para. 22].

Higginson et al. v. Kerr et al. (1898), 30 O.R. 62 (H.C.), refd to. [para. 26].

Miles, Re (1917), 11 O.W.N. 292 (H.C.), refd to. [para. 28].

McCuaig, Re (1924), 25 O.W.N. 712 (H.C.), refd to. [para. 28].

Neo v. Neo (1875), L.R. 6 P.C. 381 (P.C.), refd to. [para. 29].

Connell v. Connell (1906), 37 S.C.R. 404, refd to. [para. 30].

Gilkinson, Re (1930), 38 O.W.N. 26 (C.A.), refd to. [para. 31].

Rees' Will Trusts, Re, [1949] 2 All E.R. 1003 (C.A.), refd to. [para. 32].

Daniels v. Daniels Estate et al. (1991), 120 A.R. 17; 8 W.A.C. 17; 85 D.L.R.(4th) 116 (C.A.), refd to. [para. 33].

Hardy Estate, Re (1952), 29 M.P.R. 358 (N.S.S.C.), refd to. [para. 42].

Barry v. Butlin (1838), 2 Moo. P.C. 480; 12 E.R. 1089, refd to. [para. 46].

Blackwell v. Blackwell, [1929] A.C. 318, refd to. [para. 54].

Keen's Estate, Re; Evershed v. Griffiths, [1937] 1 Ch. 236 (C.A.), refd to. [para. 55].

Mihalopulos Estate, Re (1956), 19 W.W.R.(N.S.) 118 (Alta. T.D.), refd to. [para. 57].

Huxtable, Re; Huxtable v. Crawfurd, [1902] 2 Ch. 793 (C.A.), refd to. [para. 60].

Fleury Estate v. Fleury Estate, [1965] S.C.R. 817, refd to. [para. 75].

National Trust Co. v. Fleury et al. - see Fleury Estate v. Fleury Estate.

Lucas-Tooth v. Lucas-Tooth, [1921] 1 A.C. 594, refd to. [para. 75].

Harrison, Re; Turner v. Hellard (1885), 30 Ch. D. 390, refd to. [para. 76].

Biln, Re (1967), 59 W.W.R.(N.S.) 229 (Alta. S.C.), refd to. [para. 76].

Brown, Re (1891), 8 Man.R. 391 (Q.B.), refd to. [para. 91].

Klassen Estate v. Klassen et al., [1986] 5 W.W.R. 746; 50 Sask.R. 64 (Q.B.), refd to. [para. 92].

Yakimischak Estate, Re (1980), 8 Man.R.(2d) 19; 10 E.T.R. 174 (Q.B.), refd to. [para. 93].

Selman Estate, Re (1957), 23 W.W.R.(N.S.) 349 (B.C.S.C.), refd to. [para. 94].

Boyes v. Cook (1880), 14 Ch. D. 53 (C.A.), refd to. [para. 131].

Statutes Noticed:

Wills Act, R.S.M. 1988, c. W-150; C.C.S.M., c. W-150, sect. 23 [para. 63]; sect. 37(1) [para. 39].

Authors and Works Noticed:

Feeney, Thomas G., The Canadian Law of Wills (3rd Ed. 1987), vol. 2, p. 7 [para. 74].

Halsbury's Laws of England (4th Ed.), vol. 50, para. 370 [para. 69].

Halsbury's Laws of England (4th Ed. 1995 reissue), vol. 48, pp. 291 to 296 [para. 107].

Phipson on Evidence (14th Ed. 1990), para. 38-29 [para. 40].

Theobold on Wills (14th Ed. 1982), gen­erally [para. 131].

Waters, D.W.M., The Law of Trusts in Canada (2nd Ed.), p. 231 [para. 43].

Counsel:

E. Tawkin, for the appellant;

C.W. Iwanchuk, for the respondent;

J.S. Michaels, for the beneficiaries.

This appeal was heard on October 3, 1995, before Huband, Helper and Kroft, JJ.A., of the Manitoba Court of Appeal. The decision of the court was delivered on December 22, 1995, and the following opinions were filed:

Huband, J.A., dissenting - see para­graphs 1 to 66;

Helper, J.A. - see paragraphs 67 to 110;

Kroft, J.A. - see paragraphs 111 to 136.