Lubberts Estate, Re, (2014) 577 A.R. 110

• Judge: Picard, Veldhuis and Wakeling, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: February 25, 2014
• Citations: (2014), 577 A.R. 110;2014 ABCA 216

Lubberts Estate, Re (2014), 577 A.R. 110; 613 W.A.C. 110 (CA)

MLB headnote and full text

Temp. Cite: [2014] A.R. TBEd. JN.104

In The Matter Of the Estate of Johanna Frederika Lubberts also known as Johanna F. Lubberts

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

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

(1303-0121-AC; 2014 ABCA 216)

Indexed As: Lubberts Estate, Re

Alberta Court of Appeal

Picard, Veldhuis and Wakeling, JJ.A.

June 25, 2014.

Summary:

Lubberts, the mother of the appellants (Paul and Irene) and respondents, died on December 20, 2009. She was 84 years old. Her April 8, 2008 holograph will revoked all previously made wills. Two sentences of the will read as follows: "My entire estate - cash, my house ... and my quarter section of land ... I leave to my son Paul ... and to my youngest daughter Irene ... to jointly manage it and use it for their own benefit as salary for instance, or for the benefit of one of their siblings or one of my grandchildren ... . Irene and Paul will make all those decisions together and without yielding to any pressures applied by possible recipients." The issue was whether the April 8, 2008 will made a gift to Paul and Irene, or made 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, in a decision reported at 548 A.R. 1, concluded that Lubberts intended to create a trust. Giving effect to the parties' agreement, the court concluded that the intended trust failed, and the estate passed by intestacy. Paul and Irene appealed.

The Alberta Court of Appeal dismissed the appeal. The trial judge came to the correct conclusion. Lubberts did not intend to give her entire estate to Paul and Irene and leave nothing to her other two children. The words in the April 8, 2008 will and other relevant information disclosed that Lubberts intended to create a trust for the benefit of her children and grandchildren. As the parties had agreed that she failed to create a valid trust, it followed that her estate was to be distributed in accordance with governing intestacy principles.

Executors and Administrators - Topic 5548

Actions by and against representatives - Costs - Where payable out of estate - The Alberta Court of Appeal awarded both the appellants and respondents their costs on a full-indemnity basis from the estate - "This dispute was directly attributable to the fact that the testator chose to draft her will without the assistance of a lawyer and utilized unclear language. There is sufficient merit in the appellants' case to justify an order directing the estate to pay the appellants' costs on a full-indemnity basis." - See paragraphs 79, footnote 44.

Gifts - Topic 501

Gifts inter vivos - General principles - Gift inter vivos - Defined - The Alberta Court of Appeal set out the elements of an inter vivos gift - See paragraph 32.

Gifts - Topic 1502

Gifts mortis causa - General principles - Gift mortis causa - Defined - The Alberta Court of Appeal set out the elements of a gift by testamentary disposition - See paragraph 33.

Practice - Topic 7455

Costs - Solicitor and client costs - Entitlement to solicitor and client costs - Estates and estate matters - [See Executors and Administrators - Topic 5548 ].

Practice - Topic 8808

Appeals - General principles - Duty of appellate court respecting conclusions or interpretation of trial judge (incl. contractual interpretation) - This case was about the meaning to be attached to two sentences of a holograph will - The Alberta Court of Appeal held that the standard of review was correctness - "An appeal court reviews legal determinations made by the court appealed from on a correctness standard. ... The 'primary role of appellate courts is to delineate and refine legal rules' so that similar fact patterns within the jurisdiction have similar legal consequences. ... More than forty years ago the Supreme Court of Canada, in Alberta Giftwares Ltd. v The Queen, [1973] S.C.R. 584, 588, held that 'in construing a will, deed, contract, prospectus or any other commercial document, the legal effect to be given to the language employed is a question of law'. This is still the case. No subsequent decision of the Supreme Court of Canada has abandoned this position. ... There is no reason for an appeal court to ignore a fact-finder's work unless it is clearly wrong. ... Trial judges have considerable institutional advantages which, in most cases, must be recognized." - See paragraphs 29 to 31.

Trusts - Topic 341

Creation of trust - Requirements of - General - The Alberta Court of Appeal set out the benchmarks of a valid trust - See paragraphs 49 and 50.

Trusts - Topic 356

Creation of trust - Intention - Trust v. absolute gift - [See Wills - Topic 7341 ].

Wills - Topic 61

Testamentary instruments - Holograph wills - General - [See Wills - Topic 7341 ].

Wills - Topic 1026

Donees - Power of appointment - General principles - The Alberta Court of Appeal set out the principles governing a power of appointment that may be given to a person named in a will, including the benchmarks of a valid power of appointment, and the three types of powers of appointment - See paragraphs 39 to 48.

Wills - Topic 1032

Donees - Power of appointment - Trust v. power of appointment - The Alberta Court of Appeal set out the "significant differences" between a trust and a power of appointment - See paragraph 51.

Wills - Topic 1032

Donees - Power of appointment - Trust v. power of appointment - The issue was whether the April 8, 2008 holograph will of the testator, a deceased mother and grandmother, made a gift to only two of her four children (Paul and Irene), or made them trustees, or gave them a power of appointment - The Alberta Court of Appeal agreed with the motions judge that the testator intended to create a trust - "The argument that the testator bestowed a power of appointment on Irene and Paul does not appeal to us. [The testator's] historical will collection indicates that she is an independent person who calls a spade a spade and likes to be in control. ... Given that the testator had a strong controlling personality, the notion she would be willing to give anyone a power over her estate to do what the appointor thought appropriate is impossible to accept. As expected, there is no language in any of the historical wills or in the April 8, 2008 will that suggests she had any intention to bestow a power of appointment on Irene and Paul." - See paragraphs 74 to 76.

Wills - Topic 3106

Gifts - General - What constitutes a gift - The issue was whether the holograph will of the testator, a deceased mother and grandmother, made a gift to only two of her four children (Paul and Irene), or made them trustees, or gave them a power of appointment - The Alberta Court of Appeal agreed with the motion judge that the will did not support the argument that the testator intended to give her estate to Paul and Irene - The testator knew what a gift was and did not employ gift language in the two sentences under scrutiny - The will directed Irene and Paul to manage the testator's estate for the benefit of her children and grandchildren - If the testator had wished to gift her estate to just Paul and Irene, she most likely would have stated the allocation she intended - The testator would not likely have created a joint bank account for the benefit of Irene if she had intended to gift to Irene a part of her estate - The use of the word "leave" in the sentence "My entire estate ... I leave to my son ... and to my youngest daughter" did not support the argument that the testator intended to gift her entire estate, as "[t]he rest of the words in the will belie such an intention" - "Leave", in this context, was a neutral word - The Court's conclusion harmonized the provisions in the will and was consistent with all the relevant material before the Court - The testator was a mother interested in the future financial security of her children and grandchildren - Nothing in the will revealed a desire to disinherit any of her children - See paragraphs 69 to 73.

Wills - Topic 5000

Construction - General - General principles - Ascertainment of intention of testator - The Alberta Court of Appeal considered the objective of a court asked to review a will, and the best means of achieving that objective - "It is the court's role to give effect to the testator's intention. ... To be faithful to the testator's will, a court must identify the meaning the testator wished to convey by her choice of words. This can only be done, in many cases, if the court has access to relevant evidence which records information, in existence at the time the testator signed her will, about the testator's family and the nature of various family relationships, close friends, interests and many other facts which might influence the testator when engaged in the will-making process. A court, aware of important information about the testator, must carefully read the entire will, giving the words she selected or approved their ordinary meaning. ... If the will and the context within which it is made reveals that the testator had a different intention, a court must adjust its linguistic standards and give the will a meaning consistent with the testator's language values. Ascertaining the testator's will is a subjective - as opposed to an objective - enterprise. Values foreign to interpreting contracts and laws are paramount in interpreting wills. ... Subject to public policy concerns, there is no good reason to give a testator's last will and testament a meaning not completely faithful to her wishes." - See paragraphs 7 to 10, 52 to 63.

Wills - Topic 5001

Construction - General - General principles - The testator died on December 20, 2009 - The issue was whether her April 8, 2008 holograph will made a gift to the applicants, or made them trustees, or gave them a power of appointment - The Wills and Succession Act, S.A. 2010, c. W-12.2, came into force on February 1, 2012 - It did not apply to this case - The Wills Act, R.S.A. 2000, c. W-12, did apply, on account of s. 8(1) of the Wills and Succession Act - The Alberta Court of Appeal stated that its opinions expressed in the judgment about the principles governing the interpretation of a will "apply with equal force to a will subject to the new Wills and Succession Act. ... [This appeal] gives the Court the opportunity to explain why the governing standard and related rules are sound. This is not a task which this Court, to my knowledge, has recently undertaken. The fact that the Wills and Succession Act ... came into force only recently and adopts many of the norms at play in this appeal, warrants a fresh restatement of the values these norms promote." - See paragraph 1, footnote 1.

Wills - Topic 5004

Construction - General - General principles - Construction of words in context of whole will - [See Wills - Topic 3106 and Wills - Topic 5000 ].

Wills - Topic 5183

Construction - General - Evidence and proof - Intention of testator - [See Wills - Topic 5000 ].

Wills - Topic 5183

Construction - General - Evidence and proof - Intention of testator - The testator died in 2009, at the age of 84 - This case was about the meaning to be attached to two sentences of her April 8, 2008 holograph will - The issue was whether the holograph will made a gift to the appellants, or made them trustees, or gave them a power of appointment - The Alberta Court of Appeal stated that "[p]arties who advance a claim to property the testator disposes under her will and others with a legitimate interest in ensuring that the testator's intentions are honoured may present to the court information about the life of the testator which may assist the court allocate the testator's property in the manner she wished. There is one qualification which must be stated. Because [the testator in this case] made her will on April 8, 2008, the Court may not review evidence that relates to the intention of the testator with respect to specific dispositions. But this is not the case for wills made after January 31, 2012. Section 26(c) of the Wills and Succession Act, S.A. 2010, c. W-12.2 [which came into force on February 1, 2012] states that a court 'may admit ... evidence of the testator's intent with regards to the matters referred to in the will'." - See paragraph 11.

Wills - Topic 7341

Construction - Quantity of interest taken - Trusts - General - The testator, the mother of four children, died in 2009 at the age of 84 - She made her last holograph will on April 8, 2008 - Two sentences of that will read as follows: "My entire estate - cash, my house ... and my quarter section of land ... I leave to my son Paul ... and to my youngest daughter Irene ... to jointly manage it and use it for their own benefit as salary for instance, or for the benefit of one of their siblings or one of my grandchildren ... . Irene and Paul will make all those decisions together and without yielding to any pressures applied by possible recipients." - The motions judge held that the testator intended to create a trust - She rejected the argument that the testator intended to give her estate to Paul and Irene, or give them a power of appointment - The Alberta Court of Appeal held that the judge came to the correct conclusion - The testator did not intend to give her entire estate to Paul and Irene, and leave nothing to her other two children - The words in the will and other relevant information disclosed that the testator intended Irene and Paul to use the property for the benefit of all her children and grandchildren - "This is one of the benchmarks of a trust. '[A] trustee must perform the terms of a trust, whereas a donee of a power need not exercise the power at all'. ... This conclusion is in keeping with the testator's character, insight into which are easily drawn from reading her historical wills. ... [T]here is no basis to conclude that the testator intended the words she used in her will to have any meaning other than their usual and ordinary meaning in Alberta." - See paragraphs 64 to 77.

Wills - Topic 7351

Construction - Quantity of interest taken - Trusts - Failure of trusts - The issue was whether the testator's holograph will made a gift to the appellants, or made them trustees, or gave them a power of appointment - The Alberta Court of Appeal concluded that the testator in this case intended to create a trust - "The parties agreed that if the Court concluded that the testator intended to create a trust, she failed in this enterprise. They agreed that the objects of the trust are uncertain. This will not be the first time that such a plan has failed for this reason." - See paragraph 77.

Wills - Topic 8546

Evidence and proof - Extrinsic evidence - Of intention of testator - [See second Wills - Topic 5183 ].

Cases Noticed:

Tyhurst Estate, Re, [1932] S.C.R. 713, refd to. [para. 1, footnote 2; para. 52, footnote 11].

Blackstock Estate, Re (1957), 10 D.L.R.(2d) 192 (Sask. C.A.), refd to. [para. 1, footnote 2].

Marchuk v. Marchuk (1965), 52 W.W.R. 652 (Sask. Q.B.), refd to. [para. 1, footnote 2].

Mitchell Estate v. Mitchell Estate (2004), 228 N.S.R.(2d) 295; 723 A.P.R. 295; 2004 NSCA 149, refd to. [para. 1, footnote 2].

Higgins v. Dawson, [1902] A.C. 1 (H.L.), refd to. [para. 1, footnote 2].

Donovan Estate, Re (2011), 20 A. 3d 989, refd to. [para. 1, footnote 2].

Paton v. Ormerod (1892), 66 Law. T.R. 381 (Prob. Div.), refd to. [para. 19, footnote 7; para. 59, footnote 32].

Tassone v. Pearson et al., [2012] B.C.T.C. Uned. 1262; 2012 BCSC 1262, refd to. [para. 19, footnote 7].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 29].

Alberta Giftwares Ltd. v. The Queen, [1973] S.C.R. 584, refd to. [para. 30].

Standard Trust Co. v. Hill, [1922] 2 W.W.R. 1003 (Alta. Sup. Ct. App. Div.), refd to. [para. 32].

Cochrane v. Moore (1890), 25 Q.B.D. 57 (C.A.), refd to. [para. 32].

Walker, Re (1925), 56 O.L.R. 517 (C.A.), refd to. [para. 33].

Freedman, Re (1973), 41 D.L.R.(3d) 122 (Man. Q.B.), refd to. [para. 33].

Higginson v. Kerr (1898), 30 O.R. 62, refd to. [para. 36].

Gibbs v. Rumsey (1813), 35 Eng. Rep. 331 (Ch.), refd to. [para. 38].

Hawley, In Re (1887), 10 N.E. 352, refd to. [para. 38].

Nicholls Estate, Re (1987), 18 O.A.C. 254; 34 D.L.R.(4th) 321 (C.A.), refd to. [para. 44].

Hayes, Re, [1938] 3 D.L.R. 757 (Ont. Sup. Ct.), affd. [1938] 4 D.L.R. 775 (Ont. C.A.), refd to. [para. 44].

Meagher v. Meagher (1915), 22 D.L.R. 733 (Ont. Sup. Ct. App. Div.), refd to. [para. 44].

McEwen v. Day, [1955] N.Z.L.R. 575 (Sup. Ct.), refd to. [para. 47].

Gulbenkian's Settlement Trusts, Re, [1970] A.C. 508 (H.L.), refd to. [para. 48].

Morice v. Bishop of Durham (1805), 32 Eng. Rep. 947, refd to. [para. 50].

Marley v. Rawlings et al., [2014] N.R. Uned. 18; [2014] UKSC 2, refd to. [para. 52, footnote 10; para. 55, footnote 20].

San Antonio Area Foundation v. Lang (2000), 35 S.W. 3d. 636 (Tex.), refd to. [para. 52, footnote 10].

Sealy (Western) Ltd. v. Upholsterers' International Union of North America, Local 34 (1985), 20 L.A.C. 3d 45, refd to. [para. 52, footnote 12].

Davis v. Anthony (1964), 384 S.W. 2d 60 (Tenn. Ct. App.), refd to. [para. 52, footnote 13].

National Trust Co. v. Fleury, [1965] S.C.R. 817, refd to. [para. 55, footnote 17].

Christensen and Nadon v. Martini (1999), 232 A.R. 339; 195 W.A.C. 339; 172 D.L.R.(4th) 367 (C.A.), refd to. [para. 55, footnote 17].

Haidl v. Sacher (1979), 106 D.L.R.(3d) 360 (Sask. C.A.), refd to. [para. 55, footnote 17].

Robinson Estate, Re (2011), 282 O.A.C. 189; 337 D.L.R.(4th) 193 (C.A.), refd to. [para. 55, footnote 17; para. 62, footnote 35].

Rondel v. Robinson Estate - see Robinson Estate, Re.

Bucovetsky, Re, [1943] 1 D.L.R. 208 (Ont. H.C.), refd to. [para. 55, footnote 17].

Jebb, Re, [1966] Ch. 666 (C.A.), refd to. [para. 55, footnote 18].

Perrin v. Morgan, [1943] A.C. 339 (H.L.), refd to. [para. 55, footnote 18].

Smith v. Bell (1832), 31 U.S. 68, refd to. [para. 55, footnote 19].

Stewart v. Selder (1971), 473 S.W.(2d) 3 (Tex.), refd to. [para. 55, footnote 19; para. 59, footnote 32].

Chew v. Sheldon (1915), 108 N.E. 552, refd to. [para. 55, footnote 19].

Hobbs v. Esquimalt and Nanaimo Railway (1889), 29 S.C.R. 450, refd to. [para. 56, footnote 21].

Gutheil v. Rural Municipality of Caledonia No. 99 (1964), 48 D.L.R.(2d) 628 (Sask. Q.B.), refd to. [para. 56, footnote 21].

Storey and Storey v. Price, Atlan Industries Ltd., Hallmark Pool Corp. and Pool Corp. (Canada) Ltd. (1983), 45 N.B.R.(2d) 181; 118 A.P.R. 181; 141 D.L.R.(3d) 56 (C.A.), refd to. [para. 56, footnote 21].

Rickman v. Carstairs (1833), 110 Eng. Rep. 931 (K.B.), refd to. [para. 56, footnote 21].

Moore v. Wardlow (1975), 522 S.W. 2d 522 (Tex. Civ. App.), refd to. [para. 57, footnote 23].

Siegley v. Simpson (1913), 131 P. 479, refd to. [para. 57, footnote 24].

Eisert-Graydon Estate, Re (2003), 333 A.R. 95; 2003 ABQB 40, refd to. [para. 57, footnote 25; para. 63, footnote 37].

Boyes v. Cook (1880), 14 Ch. D. 53, refd to. [para. 57, footnote 26].

Doe v. Dring (1814), 105 Eng. Rep. 447 (K.B.), refd to. [para. 57, footnote 27].

Allgood v. Blake, [1873] 8 Exch. 160, refd to. [para. 57, footnote 28].

Blake v. Hawkins (1878), 98 U.S. 315, refd to. [para. 57, footnote 28].

Kell v. Charmer (1856), 53 Eng. Rep. 76 (Ch.), refd to. [para. 58, footnote 29].

Furlong Estate v. Memorial University of Newfoundland et al. (1998), 169 Nfld. & P.E.I.R. 99; 521 A.P.R. 99 (Nfld. T.D.), refd to. [para. 58, footnote 29].

Goblet v. Beechy (1829), 57 Eng. Rep. 910, refd to. [para. 58, footnote 29].

Powell, Re (1956), 5 D.L.R.(2d) 67 (Ont. H.C.), refd to. [para. 58, footnote 30].

Gale, Re, [1941] Ch. 209, refd to. [para. 58, footnote 30].

Tottrup v. Patterson, [1970] S.C.R. 318, refd to. [para. 58].

Heinatz v. Allen (1949), 217 S.W. 2d 994 (Tex.), refd to. [para. 58].

Krezanosky Estate, Re (1992), 136 A.R. 317 (Q.B.), refd to. [para. 58, footnote 32].

Connolly, Re, [1935] 2 D.L.R. 465 (N.S. Sup. Ct.), refd to. [para. 58, footnote 32].

Longs Estate v. Long et al. (1979), 23 Nfld. & P.E.I.R. 234; 61 A.P.R. 234 (Nfld. T.D.), refd to. [para. 59, footnote 32].

Thiemer Estate v. Schlappner et al., [2012] B.C.T.C. Uned. 629; 2012 BCSC 629, refd to. [para. 59, footnote 32].

Bergey Estate, Re (1995), 103 Man.R.(2d) 202 (Q.B.), refd to. [para. 59, footnote 32].

Bergey v. Cassel - see Bergey Estate, Re.

Doe v. Martin (1833), 110 Eng. Rep. 645 (K.B.), refd to. [para. 59, footnote 32].

Doe v. Holtom (1835), 111 Eng. Rep. 716 (K.B.), refd to. [para. 59, footnote 32].

Marks v. Marks (1908), 40 S.C.R. 210, refd to. [para. 60, footnote 34].

Matheson v. Norman, [1947] 1 D.L.R. 71 (B.C. Sup. Ct.), refd to. [para. 60, footnote 34].

Therres v. Therres et al. (2005), 263 Sask.R. 143; 2005 SKQB 209, refd to. [para. 60, footnote 34].

Burke, Re (1959), 20 D.L.R.(2d) 396 (Ont. C.A.), refd to. [para. 60, footnote 34].

Kaptyn Estate, Re, [2010] O.T.C. Uned. 4293; 2010 ONSC 4293, refd to. [para. 60, footnote 34].

Harmer, Re (1963), 40 D.L.R.(2d) 825 (Ont. H.C.), refd to. [para. 60, footnote 34; para. 63].

Kiren-Amgen Inc. v. Hoechst Marion Roussel Ltd., [2005] 1 All E.R. 667 (H.L.), refd to. [para. 60, footnote 34].

Wohlgemuth's Will Trusts, Re, [1948] 2 All E.R. 882 (Ch.), refd to. [para. 60, footnote 34].

Ofner, In re, [1909] Ch. 60 (C.A.), refd to. [para. 60, footnote 34].

Smith's Will, In Re (1930), 172 N.E. 499 (C.A.), refd to. [para. 60, footnote 34].

McCullough v. Maryland (1819), 17 U.S. 316, refd to. [para. 60, footnote 34].

Elton Estate v. Elton (2010), 292 Nfld. & P.E.I.R. 237; 902 A.P.R. 237; 2010 NLCA 2, refd to. [para. 63, footnote 36].

Conner v. Bruketa Estate et al., [2011] 3 W.W.R. 557; 503 A.R. 11 (Q.B.), refd to. [para. 63, footnote 36].

Madison Estate, Re, [1997] A.J. No. 51, refd to. [para. 63].

Boreing v. Faris (1907), 104 S.W. 1022 (Ky.), refd to. [para. 65, footnote 39].

Lowe Estate v. Lowe, 2014 ONSC 2436, refd to. [para. 69, footnote 41].

Daniels v. Daniels Estate et al. (1991), 120 A.R. 17; 8 W.A.C. 17 (C.A.), refd to. [para. 77].

Klassen v. Klassen, [1986] 5 W.W.R. 746; 151 Sask.R. 11 (Q.B.), refd to. [para. 77].

Olson Estate, Re (1988), 6 W.W.R. 631; 67 Sask.R. 103 (Surr. Ct.), refd to. [para. 77].

Gilkinson, Re (1930), 38 O.W.N. 26 (H.C.), affd (1930), 39 O.W.N. 115 (C.A.), refd to. [para. 77].

Neo, Yeap Cheah v. Neo, Ong Cheng, [1875] L.R. 6 P.C. 381 (Straits Settlement Penang), refd to. [para. 77].

Dice Estate, Re (2012), 293 O.A.C. 190; 351 D.L.R.(4th) 646 (C.A.), refd to. [para. 79, footnote 44].

Wigle, Re (1924), 27 O.W.N. 357 (H.C.), refd to. [para. 79, footnote 44].

Furlong Estate v. Memorial University of Newfoundland, [1999] N.J. No. 292 (Nfld. C.A.), refd to. [para. 79, footnote 44].

Statutes Noticed:

Wills Act, R.S.A. 2000, c. W-12, sect. 7 [para. 16].

Wills and Succession Act, S.A. 2010, c. W-12.2, sect. 8(1)(a), sect. 8(1)(b), sect. 8(2), sect. 126 [para. 14].

Authors and Works Noticed:

Asprey, Michele M., Plain Language for Lawyers (4th Ed. 2010), p. 169 [para. 1, footnote 3].

Betts, Misdescriptions in Wills (1929), 9 Can. B. Rev. 579, p. 585, n. 12 [para. 54].

Bogert, George G., Trusts (6th Ed. 1987), pp. 1 [para. 49, footnote 9]; 25 [para. 65, footnote 39].

Brown, Ray Andrews and Raushenbush, Walter B., Brown on Personal Property (3rd Ed. 1975), pp. 77, 78 [para. 32].

Cardozo, Benjamin N., The Nature of the Judicial Process (1921), p. 165 [para. 1, footnote 1].

Gray, John Chipman, Powers in Trust and Gifts Implied in Default of Appointment (1911), 25 Harv. L. Rev. l, pp. 1 [para. 34, footnote 8]; 3 [para. 35].

Gillese, Eileen E., The Law of Trusts (3rd Ed. 2014), pp. 22 [para. 34, footnote 8]; 23 [paras. 51, 66]; 24 [paras. 34, 43, 51, footnote 8]; 25 [paras. 35, 44, 46]; 26 [para. 47]; 28 [para. 35]; 33, 34 [para. 48]; 41 to 47 [para. 50].

Holmes, Oliver Wendell, The Path of the Law (1897), 10 Harv. L. Rev., pp. 457 to 469 [para. 1, footnote 1].

Keeton, George Williams and Sheridan, Lionel Astor, The Law of Trusts (3rd Ed. 1993), p. 3 [para. 49, footnote 9].

Kerridge, J.R. and Rivers, A.J., The Construction of Wills (2000), 116 Law Q. Rev. 287, pp. 291 [para. 61]; 292 [para. 55, footnote 18]; 312, 313 [para. 62].

Lewison, Kim, The Interpretation of Contracts (2004), p. 19 [para. 56, footnote 21].

Lieber, Francis, Legal and Political Hermeneutics (2nd Ed. 1839), pp. 17, 18 [para. 61].

MacKenzie, James, Feeney's Canadian Law of Wills (4th Ed. 2014) (Looseleaf), §§ 1.1, 1.4 [para. 32]; 1.7 [para. 33]; 10.1 [para. 55, footnote 17]; 10.54 [para. 59, footnote 32]; 11.22 [para. 64, footnote 38].

Oosterhoff, Albert H., Oosterhoff on Wills and Succession (7th Ed. 2011), pp. xi [para. 63, footnote 37]; 3, 7 [para. 54, footnote 15]; 113 [para. 32]; 491 [para. 59, footnote 33]; 500 [para. 63, footnote 36].

Peithmann, William A., A Look at the Principles and Uses of Powers of Appointment (1993), 132:8 Tr. & Est 38, p. 39 [para. 51].

Scalia, Antonin and Garner, Bryan A., Reading Law: The Interpretation of Legal Texts (2012), pp. 30 [para. 56, footnote 21]; 51 [para. 56, footnote 21]; 53 [para. 61]; 56 [para. 53, footnote 14]; 70 [para. 52, footnote 11]; 167 [para. 1, footnote 2]; 180 [para. 72, footnote 43].

Stark, Richard C., Extrinsic Evidence and the Meaning of Wills in Texas (1977), 31 Sw. L.J. 793, pp. 794 [paras. 54, 55, footnote 19]; 797 [para. 61].

Underhill, Arthur, Trusts and Trustees (4th Ed. 1888), p. 1 [para. 49, footnote 9].

Waddams, Stephen M., The Law of Contracts (6th Ed. 2010), p. 105 [para. 56, footnote 21].

Wakeling, Audrey A., Corroboration in Canadian Law (1977), pp. 131, 132 [para. 63, footnote 37].

Walters, Donovan W.M., Gillen, Mark and Smith, Lionel, Waters' Law of Trusts in Canada (4th Ed. 2012), pp. 88 [para. 51]; 97 [para. 34, footnote 8]; 98 [para. 35].

Wigmore, John Henry, Evidence in Trials at Common Law, §§ 2458 [paras. 54, 61]; 2466, 2467 [para. 56, footnote 21]; 2470 [paras. 59, footnote 32, 61]; 2471 [para. 63]; 2472 [para. 63, footnote 36].

Counsel:

D.G. Groh, Q.C., for the appellants;

R.B. Hajduk, for the respondents.

This appeal was heard on February 25, 2014, before Picard, Veldhuis and Wakeling, JJ.A., of the Alberta Court of Appeal. The Court delivered the following memorandum of judgment, filed at Edmonton, Alberta, on June 25, 2014, including the following opinions:

Wakeling, J.A. - see paragraphs 1 to 79;

Picard and Veldhuis, JJ.A. (concurring in the result) - see paragraphs 80 to 81.