Kostrub v. Stuparyk et al.

• Jurisdiction: Alberta
• Court: Court of Queen's Bench of Alberta (Canada)
• Judge: Schlosser
• Neutral Citation: 2015 ABQB 175
• Citation: 2015 ABQB 175,(2015), 613 A.R. 189 (QBM),613 AR 189,(2015), 613 AR 189 (QBM),613 A.R. 189
• Date: 13 November 2014
• Subject Matter: WILLS,PRACTICE

Kostrub v. Stuparyk (2015), 613 A.R. 189 (QBM)

MLB headnote and full text

Temp. Cite: [2015] A.R. TBEd. MR.139

Sheldon James Kostrub and Tyler Larry Kostrub (plaintiffs) v. Karen Gail Stuparyk, Shirley Marie Tkachyk and Marcy Ann Maltais (defendants)

(1403 12279; 2015 ABQB 175)

Indexed As: Kostrub v. Stuparyk et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Schlosser, Master

March 16, 2015.

Summary:

Anastazia Kostrub's will provided that two quarters of her farmland would go to her two nephews on condition that they pay a sum of money to her daughters. Anastazia transferred the two quarters of farmland to herself and her daughters in joint tenancy for nominal or no consideration. Therefore, upon her death, the daughters would take that land as surviving joint tenants, rather than the nephews under the will. The nephews being dissatisfied with that prospect, and while Anastazia was still living, commenced an action seeking to have the transfer set aside, alleging that Anastazia did not have legal capacity to effect any transfer of the farmland. The daughters applied to strike out the action on the basis that the nephews, as mere beneficiaries under the will, had only an expectancy and not an interest. As such, they had no standing to challenge the transfer. After the hearing of the application, Anastazia died.

A Master of the Alberta Court of Queen's Bench dismissed the application to strike. The court agreed that the nephews' right did not crystalize until the time of death. However, there were four categories of standing that might apply in this type of situation: the death of the testator, loss of capacity of the testator to execute another will, an "interested person" under s. 10 of the Powers of Attorney Act, and a residual category in which the court might allow standing to challenge a transfer in unusual and compelling circumstances and there was no other means of challenging the transfer. Here, the allegations in the pleadings gave rise to the second category.

Practice - Topic 222

Person who can sue or be sued - Individuals or corporations - Status or standing - Persons interested under written instrument (will, deed, etc.) - See paragraphs 16 to 24.

Wills - Topic 5002

Construction - General principles - Time that will speaks - See paragraphs 9 to 17.

Counsel:

Frank Friesacher (McCuaig Desrochers LLP), for the plaintiffs;

Anne de Villars (de Villars Jones), for the defendants.

This application was heard in Chambers in Edmonton, Alberta, on November 13, 2014, before Schlosser, Master, of the Alberta Court of Queen's Bench, who delivered the following decision on March 16, 2015.