Kolacz v. Burdeinei et al., (1997) 194 A.R. 321 (QB)

• Judge: P.L.J. Smith, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: January 10, 1997
• Citations: (1997), 194 A.R. 321 (QB)

Kolacz v. Burdeinei (1997), 194 A.R. 321 (QB)

MLB headnote and full text

John Kolacz (plaintiff/defendant by counterclaim) v. Anna Burdeinei (defendant) and Anna Burdeinei, Executrix of the Estate of Peter Myziuk, deceased, and the said Anna Burdeinei (plaintiffs by counterclaim) and Ann Losinski, also known as Annie Lezinsky, Betty Arthur, Walter Myziuk, Gerry Myziuk also known as Garry Myziuk, John Doe, The Estate of Michael Myziuk, deceased, Annie Myziuk, Executrix of the Estate of Michael Myziuk, deceased and the said Annie Myziuk (defendants by counterclaim)

(Action No. 9503-04143)

Indexed As: Kolacz v. Burdeinei et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

P.L.J. Smith, J.

January 10, 1997.

Summary:

Myziuk died in 1994 at the age of 91. He was survived by his common law wife of 41 years (now 88). Although she had indepen­dent, grown children when they began co­habiting, Myziuk had no children. The plaintiff and his family were close family friends since the 1950's. In the five years before 1994, Myziuk made substantial inter vivos gifts to relatives and the plaintiff. More than one year before his death, Myziuk executed a new will, naming the plaintiff as executor and leaving nothing to his common law wife. Myziuk previously transferred title to their home to the wife and she had $185,000 in cash upon his death. Myziuk's estate was worth $350,000. The plaintiff applied for probate. At issue was (1) whether Myziuk had testamentary capacity when he executed his new will; (2) whether the plaintiff exerted undue influence respecting the gifts and new will; (3) whether the plaintiff and gift recipients were guilty of fraud or conspiracy respecting the gifts; and (4) whether the court should impose a con­structive trust in the common law wife's favour.

The Alberta Court of Queen's Bench held that the plaintiff proved that Myziuk had testamentary capacity. Although the pre­sumption of undue influence applied, it had been rebutted. No fraud or conspiracy was proved. Although the common law wife was not the traditional farm wife left with noth­ing, the court did impose a constructive trust in her favour respecting a portion of the estate ($85,000).

Gifts - Topic 773

Gifts inter vivos - Grounds for invalidity - Undue influence - [See Wills - Topic 1704 ].

Trusts - Topic 2346

Constructive trusts - Basis for imposition - Unjust enrichment - The deceased and his common law wife cohabited for 41 years - The wife was now 88 years of age - She brought nothing into the relationship - The deceased was already well estab­lished in business - They worked together and were frugal - The deceased's estate was valued at $350,000 - His will left the wife nothing - However, the wife had previously been given sole title to their home and had $185,000 in cash when the deceased died - The Alberta Court of Queen's Bench stated that the deceased was enriched and the wife suffered a cor­responding deprivation by the manner in which their finances were conducted - Although the wife was not in the position of the traditional farm wife left with noth­ing, the court stated that "I am satisfied she contributed to his accumulation of wealth to an extent that makes it juristical­ly unreasonable for me to award her noth­ing" - The court imposed a con­structive trust in the wife's favour to the extent of $85,000 - See paragraphs 102 to 107.

Wills - Topic 303

Testamentary capacity - General principles - Tests for determining capacity - The Alberta Court of Queen's Bench stated that to establish that a testator had testamentary capacity, the propounder of the will must establish "(i) the testator must understand the nature of the act and its effect; (ii) the testator must understand the extent of the property of which he/she is disposing; (iii) the testator must be able to comprehend and appreciate the claims to which he or she ought to give effect; (iv) the testator must not be suffering from a disorder of the mind or an insane delusion which would influence his or her Will in dispos­ing of his or her property and bring about a disposal, which, if the mind had been sound, would not have been made." - See paragraph 86.

Wills - Topic 541

Testamentary capacity - Evidence and proof - Doctrine of suspicious circum­stances - Myziuk died in 1994 at the age of 91 - He was survived by his common law wife of 41 years (now 88) - The plaintiff and his family were close family friends since the 1950's - In the five years before 1994, Myziuk made substantial inter vivos gifts to relatives and the plaintiff - More than one year before his death, My­ziuk executed a new will, naming the plaintiff as executor and leaving nothing to his common law wife - The plaintiff took Myziuk to the lawyer - Myziuk previously transferred title to their home to the wife and she had $185,000 in cash upon his death - Myziuk's estate was worth $350,000 - The Alberta Court of Queen's Bench reviewed the doctrine of suspicious circumstances and held that absent a pre­sumption of testamentary capacity, and in the presence of suspicious circumstances, the plaintiff proved on a balance of prob­abilities that Myziuk had testamentary capacity when he executed his new will - See paragraphs 82, 83, 86 to 98.

Wills - Topic 1704

Preparation and execution - Undue influ­ence - What constitutes - General - My­ziuk died in 1994 at the age of 91 - He was survived by his common law wife of 41 years (now 88) - The plaintiff and his family were close family friends since the 1950's - In the five years before 1994, Myziuk made substantial inter vivos gifts to relatives and the plaintiff - More than one year before his death, Myziuk exe­cuted a new will, naming the plaintiff as executor and leaving nothing to his com­mon law wife - The plaintiff, who was like a son over the years, took Myziuk to the lawyer - Myziuk previously trans­ferred title to their home to the wife and she had $185,000 in cash upon his death - Myziuk's estate was worth $350,000 - The Alberta Court of Queen's Bench reviewed the law respecting undue influence and held that, although undue influence was presumed, the evidence satisfied the court that the plaintiff had rebutted the pre­­sumption - See paragraphs 84 to 99.

Cases Noticed:

Becker v. Pettkus, [1980] 2 S.C.R. 834; 34 N.R. 384; 19 R.F.L.(2d) 165; 117 D.L.R.(3d) 257, refd to. [para. 1].

Eady v. Waring (1974), 43 D.L.R.(3d) 667 (Ont. C.A.), refd to. [para. 1].

Public Trustee (Alta.) v. Dickson (1986), 72 A.R. 170; 46 Alta. L.R.(2d) 294 (Q.B.), refd to. [para. 1].

Hay Estate, Re, [1995] 2 S.C.R. 876; 183 N.R. 1; 82 O.A.C. 161; 125 D.L.R.(4th) 431, refd to. [para. 1].

Berringer Estate, Re (1991), 107 N.S.R.(2d) 104; 290 A.P.R. 104 (Prob. Ct.), refd to. [para. 1].

Banks v. Goodfellow (1870), L.R. 5 Q.B. 549 (U.K.Q.B.), refd to. [para. 1].

Collicut Estate, Re (1994), 128 N.S.R.(2d) 81; 359 A.P.R. 81 (Prob. Ct.), affd. (1994), 134 N.S.R.(2d) 137; 383 A.P.R. 137 (C.A.), refd to. [para. 1].

Lynch Estate v. Lynch Estate (1993), 138 A.R. 41; 8 Alta. L.R.(3d) 291 (Q.B.), refd to. [para. 1].

Scramstad et al. v. Stannard (1996), 188 A.R. 23 (Q.B.), refd to. [para. 1].

Goodman Estate v. Geffen, [1991] 2 S.C.R. 353; 127 N.R. 241; 125 A.R. 81; 14 W.A.C. 81, refd to. [para. 1].

Bank of New South Wales v. Rogers (1941), 65 C.L.R. 42 (H.C.), refd to. [para. 2].

Bradley v. Crittenden, [1932] 3 D.L.R. 193 (S.C.C.), refd to. [para. 2].

Canadian Aero Service Ltd. v. O'Malley (1973), 40 D.L.R.(3d) 371 (S.C.C.), refd to. [para. 2].

International Corona Resources Ltd. v. LAC Minerals Ltd., [1989] 2 S.C.R. 574; 101 N.R. 239; 36 O.A.C. 57; 61 D.L.R.(4th) 14, refd to. [para. 2].

MacDonald v. Hauer (1976), 72 D.L.R.(3d) 110 (Sask. C.A.), refd to. [para. 2].

Nocton v. Lord Ashburton, [1914] A.C. 932 (H.L.), refd to. [para. 2].

Cole Estate, Re (1996), 191 A.R. 119 (Q.B.), refd to. [para. 2].

Houle Estate v. Houle (1996), 192 A.R. 237 (Q.B.), refd to. [para. 2].

Sorochan v. Sorochan, [1986] 2 S.C.R. 38; 69 N.R. 81; 74 A.R. 67, refd to. [para. 2].

Tataryn et al. v. Tataryn Estate, [1994] 2 S.C.R. 807; 169 N.R. 60; 46 B.C.A.C. 255; 75 W.A.C. 255, refd to. [para. 2].

Authors and Works Noticed:

Finn, Paul D., The Liability of Third Parties for Knowing Receipt or As­sistance, in Equity Fiduciaries and Trusts (1993), generally [para. 2].

Counsel:

Brian S. Sussman and David W. Hrycun (Biamonte Cairo & Shortreed), for the plaintiff;

Travis Huckell (Huckell Taskey & Belzil), for the defendant/plaintiff by counter­claim;

Remi G. St. Pierre (McCuaig Desrochers), for the defendants by counterclaim.

This case was heard before P.L.J. Smith, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on January 10, 1997.