Oryshchuk Estate, Re, 2009 ABQB 688

• Judge: Ross, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: July 27, 2009
• Citations: 2009 ABQB 688;(2009), 485 A.R. 379 (QB)

Oryshchuk Estate, Re (2009), 485 A.R. 379 (QB)

MLB headnote and full text

Temp. Cite: [2009] A.R. TBEd. DE.011

Estate Name: John Peter Oryshchuk

Joanne Carolynn Bates (applicant/plaintiff) v. Joyce Oryshchuk, Blain Oryshchuk, Donna Oryshchuk, Allan Loughran and Tracy Loughran (respondents/defendants)

(ES14 02245; 2009 ABQB 688)

Indexed As: Oryshchuk Estate, Re

Alberta Court of Queen's Bench

Judicial District of St. Paul

Ross, J.

November 23, 2009.

Summary:

An application was made for advice and direction in an estate matter. At the hearing, a personal representative was appointed and a special chambers hearing was ordered to determine the following two issues: (1) was the document dated November 21, 1995, a valid will; and (2) if so, did it operate to revoke the will of the deceased dated February 23, 1983? At the special chambers hearing, with the agreement of all parties, a third issue was added for determination: (3) if the November 21, 1995 will was a valid will, did the words "personal assets" which were stated in the last line of that document, refer to the deceased's residual assets, including the shares of his company?

The Alberta Court of Queen's Bench Division, concluded as follows: (1) the document dated November 21, 1995 was a valid will; (2) that document operated to revoke the will of the deceased dated February 23, 1983; and (3) the words "personal assets" did not refer to the deceased's residual assets or the shares of his company.

Wills - Topic 63

Testamentary instruments - Holograph wills - Validity of - Oryshchuk's 1983 will left everything to his wife through a residual clause - Oryshchuk and his wife separated in 1994 and divorced in 1999 - Oryshchuk commenced a relationship with Bates and in January 1996 they began cohabiting - In November 1995, Oryshchuk executed a holograph document purporting to distribute assets to various people - The Alberta Court of Queen's Bench held that the 1995 document was a valid will because it was entirely in Oryshchuk's handwriting and was signed by him (Wills Act, s. 7) - The document contained a signature of a witness which was not necessary to the validity of a holograph will - However, the signature did not make the will any less valid - Further, although not an issue, a witness's signature on a holograph will would not invalidate a bequest to that witness (s. 13(2)) - See paragraphs 6 and 7.

Wills - Topic 1083

Donees - Disqualification of donee - Where donee was witness to execution of will - [See Wills - Topic 63 ].

Wills - Topic 2374

Revocation - By subsequent will - Intention - The Alberta Court of Queen's Bench stated that "implied revocation, like express revocation, derives from the intention of the testator, and therefore it is possible that even when a second will does not dispose of all of a testator's property, the testator's intention to revoke an earlier will in its entirety may still be inferred. The presumption against intestacy is only a presumption. It is defeated where by the terms of a later will it is clear that the testator intended to revoke a prior will. Generally, in the absence of an express revocation clause, an earlier will is revoked only to the extent that it is inconsistent with a second will. However, where a subsequent will disposes of, or shows an intention to dispose of, all the testator's property, the court may infer that the testator has impliedly revoked the whole of the first will." - See paragraph 23.

Wills - Topic 2374

Revocation - By subsequent will - Intention - Oryshchuk's 1983 will left everything to his wife (Joyce) through a residual clause - Oryshchuk and Joyce separated in 1994 and divorced in 1999 - Oryshchuk commenced a relationship with Bates and in January 1996 they began cohabiting - In November 1995, Oryshchuk executed a holograph document purporting to distribute assets to various people - The will did not contain a revocation clause - Its final clause provided that "Balance of personal assets go to Joyce Oryshchuk (House and Car)" - The Alberta Court of Queen's Bench concluded that, given the qualifier "house", Oryshchuk intended the phrase "personal assets" to include both real and personal property - The context of the will as a whole had to also be considered - The will specifically separated business assets (the bulk of the will) and personal assets (the final clause) - While it purported to give away the assets of a company in which Oryshchuk was the sole shareholder, it failed to deal with the company shares or provide any direction regarding the company's future assets - The gifts of the company's assets were invalid as the assets were owned by the company, not Oryshchuk - Applying the armchair rule, the court concluded that Oryshchuk intended to keep his business assets separate from his personal assets and that the phrase "personal assets" did not include the company shares - Accordingly, the final clause was not a general residuary clause and the will did not dispose of all or even substantially all of the estate - Nevertheless, applying the same interpretive process, the court concluded that Oryshchuk clearly intended to dispose of all of his property in the 1995 will and that he did not intend for the 1983 will to have any further effect - The intended dispositions impliedly revoked the whole of the 1983 will - The presumption against intestacy was rebutted - See paragraphs 8 to 45.

Wills - Topic 2376

Revocation - By subsequent will - Requirement of complete disposition of testator's property - [See both Wills - Topic 2374 ].

Wills - Topic 5000

Construction - General principles - Ascertainment of intention of testator - [See second Wills - Topic 2374 ].

Wills - Topic 5004

Construction - General principles - Construction of words in context of whole will - [See second Wills - Topic 2374 ].

Wills - Topic 5027

Construction - General - Presumption - Against intestacy - [See both Wills - Topic 2374 ].

Wills - Topic 5184

Construction - General - Evidence and proof - Armchair rule - [See second Wills - Topic 2374 ].

Wills - Topic 7684

Construction - Quantity of interest taken - Residue - What constitutes a residuary disposition - [See second Wills - Topic 2374 ].

Wills - Topic 7687

Construction - Quantity of interest taken - Residue - Absence of residuary clause - Effect of - [See second Wills - Topic 2374 ].

Cases Noticed:

Eames Estate, Re, [1934] 3 W.W.R. 364 (Man. K.B.), refd to. [para. 7].

Noseworthy v. Basset in Ejectione Firmae, [1688] Comberbach 90; 90 E.R. 362; 91 E.R. 495; 145 E.R. 504 (K.B.), refd to. [para. 11]

Petchell (In the Goods of), Re (1872-75), L.R. 3 P. & D. 153, refd to. [para. 12].

Fitzsimmons, Re, [1939] 2 D.L.R. 50 (N.S.C.A.), refd to. [para. 13].

McNeil, Re (1918), 42 D.L.R. 449 (N.B.C.A.), refd to. [para. 14].

Bryan Estate, Re, [1907] P. 125 (H.C.), refd to. [para. 21].

Dempsey v. Lawson (1877), 2 P.D. 98 (H.C.), refd to. [para. 21].

Maher et al. v. Bussey et al. (2006), 256 Nfld. & P.E.I.R. 308; 773 A.P.R. 308; 2006 NLCA 28, refd to. [para. 22].

Hartum Estate, Re (2002), 321 A.R. 270; 2002 ABQB 726, refd to. [para. 22].

Perrin v. Morgan, [1943] A.C. 399 (H.L.), refd to. [para. 27].

Burke, Re, [1960] O.R. 26; 20 D.L.R.(2d) 396 (C.A.), refd to. [para. 28].

National Trust Co. v. Fleury, [1965] S.C.R. 817; 1965 CanLII 18, refd to. [para. 29].

Singer v. Singer, [1932] S.C.R. 44; 1931 CanLII 12, refd to. [para. 29].

Omilusik Estate, Re (1988), 92 A.R. 283; 62 Alta. L.R.(2d) 375; 31 E.T.R. 144 (Surr. Ct.), refd to. [para. 31].

Williams Estate, Re (2006), 253 Nfld. & P.E.I.R. 338; 759 A.P.R. 338; 2006 NLTD 21, refd to. [para. 31].

Kumar Estate, Re (2002), 202 N.S.R.(2d) 307; 632 A.P.R. 307; 2002 NSSC 65, refd to. [para. 31].

Harmer, Re, [1963] 2 O.R. 690; 40 D.L.R.(2d) 825 (H.C.), refd to. [para. 31].

Richards et al. v. Davies (1862), 143 E.R. 28, affd. (1863), 13 C.B.N.S. 861 (Exch.), refd to. [para. 31].

Kosmopoulos et al. v. Constitution Insurance Co. of Canada et al., [1987] 1 S.C.R. 2; 74 N.R. 360; 21 O.A.C. 4; 34 D.L.R.(4th) 208, refd to. [para. 35].

Meier Estate, Re (2004), 366 A.R. 299; 2004 ABQB 352, refd to. [para. 35].

Statutes Noticed:

Wills Act, R.S.A. 2000, c. W-12, sect. 7 [para. 6]; sect. 16(b) [para. 8].

Authors and Works Noticed:

Feeney, Thomas G., The Canadian Law of Wills (4th Ed. 2000), paras. 5.27, 5.28, 5.29 [para. 18]; 5.30 [para. 19]; 5.31 [para. 20]; 10.46 [para. 38]; 10.58, 10.60 [para. 31]; 10.74 [para. 22].

Oosterhoff, Albert H., Wills and Succession (6th Ed. 2007), pp. 335, 336 [para. 16].

Williams on Wills (9th Ed. 2008), vol. 1, para. 18.10 [para. 17].

Counsel:

John H. Reynolds (Reynolds & Flemke), for the applicant;

James H. Odishaw (Odishaw & Guido), for the respondents.

This matter was heard on July 27, 2009, by Ross, J., of the Alberta Court of Queen's Bench, Judicial District of St. Paul, who received supplemental submissions on October 5, 2009, and delivered the following memorandum of decision on November 23, 2009.