Lubberts Estate, Re, 2012 ABQB 506

• Judge: Ross, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: September 02, 2011
• Citations: 2012 ABQB 506;(2012), 548 A.R. 1 (QB)

Lubberts Estate, Re (2012), 548 A.R. 1 (QB)

MLB headnote and full text

Temp. Cite: [2012] A.R. TBEd. AU.048

Estate Name: Johanna Frederika Lubberts also known as Johanna F. Lubberts

Irene Hanson (Executor and Beneficiary) and Paul Lubberts (Beneficiary)

(applicants) v. Marijke Mercredi and Johanna Lubberts (respondents)

(ES03 131589; 2012 ABQB 506)

Indexed As: Lubberts Estate, Re

Alberta Court of Queen's Bench

Judicial District of Edmonton

Ross, J.

August 2, 2012.

Summary:

Johanna Lubberts died in 2009. She had prepared three holograph codicils to her 2002 will. Her four children survived her (Paul, Irene, Marijke and Johanna). The executrix (Irene) applied for an order seeking direction as to "whether or not there are any conditions on the distribution of the residue" because of the lack of clarity in the holograph will. The issue was whether the holograph will made a gift to Paul and Irene, or attempted to make them trustees, or gave them a power of appointment. The parties agreed that, if a trust were intended, it failed due to uncertainty.

The Alberta Court of Queen's Bench concluded that the holograph will gave the estate to Paul and Irene to hold as trustees. Giving effect to the parties' agreement, the court concluded that the intended trust failed, and the estate passed by intestacy.

Wills - Topic 28

Testamentary instruments - Codicils - Holograph codicils - [See Wills - Topic 7341 ].

Wills - Topic 5161

Construction - General - Directions of testator - General - [See Wills - Topic 7341 ].

Wills - Topic 7341

Construction - Quantity of interest taken - Trusts - General - Johanna Lubberts died in 2009 - She had prepared three holograph codicils to her 2002 will - Her four children survived her (Paul, Irene, Marijke and Johanna) - The executrix (Irene) applied for an order seeking direction as to "whether or not there are any conditions on the distribution of the residue" because of the lack of clarity in the holograph will - Paul and Irene were directed to jointly manage the estate and use it as described - The issue was whether the holograph will gave Paul and Irene the residue of the estate as an unconditional gift, or gave them a power of appointment (Paul and Irene's position), or attempted to make them trustees (Marijke and Johanna's position) - The Alberta Court of Queen's Bench concluded that the holograph will gave the estate to Paul and Irene to hold as trustees - The language employed by the testatrix indicated that she intended to impose an obligation on Paul and Irene - There was no provision in the holograph will regarding disposition of the estate should Paul and Irene not exercise their joint power of appointment - While this was not determinative, it was a further indication that the testatrix considered that Paul and Irene would be obliged to act as she directed - See paragraphs 28 to 41.

Cases Noticed:

Tottrup v. Patterson, [1970] S.C.R. 318; 71 W.W.R.(N.S.) 338, refd to. [para. 14].

Otterwell, Re - see Tottrup v. Patterson.

Rufenack v. Hope Mission et al. (2002), 328 A.R. 148; 2002 ABQB 1055 (Sur. Ct.), revd. on other grounds (2006), 384 A.R. 64; 367 W.A.C. 64; 2006 ABCA 60, refd to. [para. 24].

Sutherland Estate v. Nicoll Estate, [1944] S.C.R. 253, refd to. [para. 24].

Daniels v. Daniels Estate et al. (1991), 120 A.R. 17; 8 W.A.C. 17; 85 D.L.R.(4th) 116 (C.A.), consd. [para. 38].

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

Authors and Works Noticed:

Gillen, Mark R., and Smith, Lionel D., Waters' Law of Trusts in Canada (3rd Ed.), pp. 3, 4 [para. 31]; 91, 92 [para. 33]; 93, 94 [para. 37]; 95 [para. 32]; 136 [para. 25]; 1117 [paras. 36, 40].

Counsel:

Richard B. Hajduk (Hajduk Gibbs LLP), for Marijke Mercredi and Johanna Lubberts;

Dennis G. Groh, Q.C. (Heil & Groh), for Irene Hanson (as beneficiary) and Paul Lubberts (as beneficiary);

Christopher R. Head, for Irene Hanson (as Executor) and for the Estate.

This matter was heard on September 2, 2011, and June 26, 2012, before Ross, J., of the Alberta Court of Queen's Bench, who delivered the following memorandum of decision, dated at Edmonton, Alberta, on August 2, 2012.