Peters Estate, Re, (2015) 609 A.R. 25

• Judge: Rowbotham, McDonald and O'Ferrall, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: September 11, 2015
• Citations: (2015), 609 A.R. 25;2015 ABCA 301

Peters Estate, Re (2015), 609 A.R. 25; 656 W.A.C. 25 (CA)

MLB headnote and full text

Temp. Cite: [2015] A.R. TBEd. SE.082

Marette Leslie Florence Peters (appellant/applicant) v. Gordon Daniel Peters/Estate of Ileen Caroline Peters (respondents/respondents)

(1501-0067-AC; 2015 ABCA 301)

Indexed As: Peters Estate, Re

Alberta Court of Appeal

Rowbotham, McDonald and O'Ferrall, JJ.A.

September 22, 2015.

Summary:

Gordon was the only biological child of Lester and Ileen Peters. Lester also had four children from a previous marriage, one of whom was Marette. Lester died in 2009. Ileen died intestate in 2013. Marette applied for an equal division of the net proceeds of Ileen's estate among Ileen's four stepchildren and Gordon.

The Alberta Court of Queen's Bench, in a decision reported at [2015] A.R. Uned. 229, dismissed the application, finding that a stepchild was not a "descendant" for the purposes of ss. 65 and 66 of the Wills and Succession Act. Marette appealed and applied for the admission of fresh evidence on appeal.

The Alberta Court of Appeal dismissed the application and the appeal.

Devolution of Estates - Topic 447

Devolution - General - Children - Stepchildren - Gordon was the only biological child of Lester and Ileen Peters - Lester also had four children from a previous marriage, one of whom was Marette - Lester died in 2009 - Ileen died intestate in 2013 - Marette applied for an equal division of the net proceeds of Ileen's estate among Ileen's four stepchildren and Gordon - The chambers judge dismissed the application, finding that a stepchild was not a "descendant" for the purposes of ss. 65 and 66 of the Wills and Succession Act - The Alberta Court of Appeal dismissed Marette's appeal - "Descendants" was defined in s. 1(1) of the Act as "all lineal descendants of an individual through all generations" - A lineal descendant was a blood relative - The Act did not define "child" - If the legislature had intended to provide stepchildren with the same rights as natural and adopted children, it could have drafted the Act in a similar manner as, for example, the Fatal Accidents Act, which did include stepchildren in its definition of "child" - Intestate succession legislation in Alberta had historically excluded stepchildren - It was clear that the current Act did not intend to alter the scheme as it had previously existed - See paragraphs 10 to 16.

Practice - Topic 9031

Appeals - Evidence on appeal - Admission of "new evidence" or "fresh evidence" - The stepchild of an intestate appealed from a decision which held that she was not a beneficiary of her intestate stepmother's estate - She applied for the admission of fresh evidence on appeal, including: family photographs; an invitation to attend the wedding of the intestate's biological child; a Mother's Day card and other communication from the intestate; a school award; the affidavit of another stepchild; and a photograph of a gift from the intestate to another stepchild - The Alberta Court of Appeal dismissed the application - All of the evidence was available at the time of the chambers application - Moreover, it was not relevant and could not have affected the result - While the proposed fresh evidence was demonstrative of the relationship between the intestate and two of her stepchildren, the main issue was whether the legislation included stepchildren as beneficiaries of an intestate - With respect to the allegation that the evidence supported a secret trust, it did not provide evidence that the intestate expressed her intentions to the alleged trustee (her biological child), as required by law - See paragraphs 6 to 9.

Statutes - Topic 502

Interpretation - General principles - Intention of Parliament - [See Devolution of Estates - Topic 447 ].

Trusts - Topic 1528

Secret trusts - Creation of secret trust - Elements of - Gordon was the only biological child of Lester and Ileen Peters - Lester also had four children from a previous marriage, one of whom was Marette - Lester died in 2009 - Ileen died intestate in 2013 - Marette applied for an equal division of the net proceeds of Ileen's estate among Ileen's four stepchildren and Gordon - The chambers judge dismissed the application, finding that a stepchild was not a "descendant" for the purposes of ss. 65 and 66 of the Wills and Succession Act - Marette appealed, arguing that Ileen created a secret trust, and that Gordon held the property in trust for the benefit of himself and all four stepchildren - The Alberta Court of Appeal dismissed the appeal - Marette's evidence consisted of statements made by Ileen to the stepchildren that the estate was to be held in trust for the benefit of all five children - None of the evidence demonstrated the communication of Ileen's intention to the trustee, Gordon - There was no evidence that Gordon was advised by Ileen that she intended some property to be held in trust, or of the intended beneficiaries of the trust - There was no evidence that Gordon acquiesced to hold the property of the estate in trust - See paragraphs 17 to 23.

Cases Noticed:

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181; 106 D.L.R.(3d) 212, refd to. [para. 7].

Re White (Leblanc), [1945] 2 D.L.R. 803; [1945] 1 W.W.R. 78, refd to. [para. 13].

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; 116 D.L.R.(4th) 193, refd to. [para. 15].

Houston et al. v. Houston Estate, [2014] B.C.T.C. Uned. 489; 2014 BCSC 489, refd to. [para. 15].

Wetmore v. Esaryk - see Wetmore v. Wetmore Estate et al.

Wetmore v. Wetmore Estate et al. (1999), 14 B.C.T.C. 263; 1999 CanLII 6552 (S.C.), refd to. [para. 15].

Knight v. Knight (1840), 3 Beav. 148; 49 E.R. 58 (Eng. Ch.), refd to. [para. 18].

Goodman Estate v. Geffen (1987), 80 A.R. 47; 52 Alta. L.R.(2d) 201 (Q.B.), revd. (1989), 98 A.R. 321; 68 Alta. L.R.(2d) 289 (C.A.), revd. (1991), 127 N.R. 241; 125 A.R. 81; 14 W.A.C. 81; 80 Alta. L.R.(2d) 293 (S.C.C.), refd to. [para. 18].

Ottaway v. Norman (1971), 3 All E.R. 1325 (Eng. Ch.), refd to. [para. 20].

Jankowski v. Pelek Estate (1995), 107 Man.R.(2d) 167; 109 W.A.C. 167; 131 D.L.R.(4th) 717 (C.A.), refd to. [para. 20].

Statutes Noticed:

Wills and Succession Act, S.A. 2010, c. W-12.2, sect. 1(1) [para. 11]; sect. 65, sect. 66 [para. 10].

Authors and Works Noticed:

Alberta Law Reform Institute, Reform of the Intestate Succession Act: Report No. 78 (1999), p. 1 [para. 13].

Waters, Donovan, Gill, Mark, and Smith, Lionel, Waters' Law of Trusts (3rd Ed. 2005), pp. 269 [para. 19]; 274 [para. 21].

Counsel:

Marette Leslie Florence Peters, the appellant, in person;

W. Thorsteinson (no appearance), for the respondents.

This application and appeal were heard on September 11, 2015, before Rowbotham, McDonald and O'Ferrall, JJ.A., of the Alberta Court of Appeal. The following memorandum of judgment was delivered by the court at Calgary, Alberta, on September 22, 2015.