Petrowski v. Petrowski Estate, 2009 ABQB 196

• Judge: Moen, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: March 18, 2008
• Jurisdiction: Alberta
• Citations: 2009 ABQB 196;(2009), 466 A.R. 59 (QB)

Petrowski v. Petrowski Estate (2009), 466 A.R. 59 (QB)

MLB headnote and full text

Temp. Cite: [2009] A.R. TBEd. AP.043

Peter Petrowski (plaintiff) v. Joan Doreen Petrowski, Executrix of the Estate of Nick Petrowski, Deceased and Joan Doreen Petrowski (defendants)

(0303 16218; 2009 ABQB 196)

Indexed As: Petrowski v. Petrowski Estate et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Moen, J.

March 31, 2009.

Summary:

The testator died in 2001 at the age of 92. In his will, which he made in August 2000, he left all of his property to his daughter (the defendant), whom he also made the executor of his will. Three months before he passed away, the testator executed transfers of all his farm and mineral titles into joint names with the defendant. The plaintiff (the testator's son) brought an action, challenging the will and transfers.

The Alberta Court of Queen's Bench determined the issues.

Barristers and Solicitors - Topic 1560.1

Relationship with client - Duty to client - General - Where possibility of undue influence or unconscionability - The testator owned a farm - He had two children (the plaintiff and the defendant) - When the plaintiff was between 18 and 22 years old, the testator bought him farmland and gave him cattle - The plaintiff used these assets to buy more land and cattle - When he was 30 years old, the plaintiff had a farming accident which left him paralyzed from the chest down for the rest of his life - After the testator's wife died in December 1973, the defendant moved from Edmonton to live with the testator on the testator's farm where she looked after the testator and assumed a major role of managing the farm - She also went into a business of training and boarding race horses on that farm - The testator died in 2001 at the age of 92 - In his will, which he made in August 2000, he left all of his property to the defendant, whom he also made the executor of his will - Three months before he passed away, the testator executed transfers of all his farm and mineral titles into joint names with the defendant - The will and transfers were prepared by Milen, a lawyer whom the testator met through the defendant's horse racing business - Milen met with the testator several times to discuss estate planning and the drafting of a will - The plaintiff brought an action challenging the will, asserting that there were suspicious circumstances surrounding the preparation and execution of the will and that, inter alia, Milen failed to ask questions regarding capacity or undue influence - The Alberta Court of Queen's Bench rejected the assertion - Milen had known the testator for four years in the context of horse races and in his home - Milen was very definite that there was no difference between the testator that gave him instructions and executed the will and the testator he had known for four years - This was powerful evidence - The instructions were taken directly from the testator and Milen took notes of the instructions - Milen had fulfilled his duty - See paragraphs 74 to 99.

Barristers and Solicitors - Topic 3406

Compensation - Particular matters - Estate matters - The testator owned a farm - He had two children (the plaintiff and the defendant) - When the plaintiff was between 18 and 22 years old, the testator bought him farmland and gave him cattle - The plaintiff used these assets to buy more land and cattle - When he was 30 years old, the plaintiff had a farming accident which left him paralyzed from the chest down for the rest of his life - After the testator's wife died in December 1973, the defendant moved from Edmonton to live with the testator on the testator's farm where she looked after the testator and assumed a major role of managing the farm - She also went into a business of training and boarding race horses on that farm - The testator died in 2001 at the age of 92 - In his will, which he made in August 2000, he left all of his property to the defendant, whom he also made the executor of his will - Three months before he passed away, the testator executed transfers of all his farm and mineral titles into joint names with the defendant - The will and transfers were prepared by Milen, a lawyer whom the testator met through the defendant's horse racing business - Milen met with the testator several times to discuss estate planning and the drafting of a will - The plaintiff brought an action challenging the will, asserting that there were suspicious circumstances surrounding the preparation and execution of the will including, inter alia, that Milen wrote off his fees for preparation of the will - The Alberta Court of Queen's Bench rejected the assertion - Milen sent an account to the testator for costs only, not charging his fees, because he said that the defendant had worked with his horses and it was Milen's view that the compensation arrangement with the defendant in the first four years of that association was an unfair arrangement for the defendant, as the horses were not that productive - Although the defendant did not complain, Milen said that he appreciated the work that she had done and he decided that he would not charge the testator because of all the testator and the defendant had done for him - In fact, Milen wrote off his time for the preparation of the will, Power of Attorney and land transfers - Milen's explanation for not charging his fee portion was reasonable - See paragraphs 100 to 103.

Evidence - Topic 2401

Special modes of proof - Presumptions - Specific presumptions - Inference from failure to call or adduce available evidence - The testator owned a farm - He had two children (the plaintiff and the defendant) - When the plaintiff was between 18 and 22 years old, the testator bought him farmland and gave him cattle - The plaintiff used these assets to buy more land and cattle - When he was 30 years old, the plaintiff had a farming accident which left him paralyzed from the chest down for the rest of his life - After the testator's wife died in December 1973, the defendant moved from Edmonton to live with the testator on the testator's farm where she looked after the testator and assumed a major role of managing the farm - She also went into a business of training and boarding race horses on that farm - The testator died in 2001 at the age of 92 - In his will, which he made in August 2000, he left all of his property to the defendant, whom he also made the executor of his will - Three months before he passed away, the testator executed transfers of all his farm and mineral titles into joint names with the defendant - The will and transfers were prepared by Milen, a lawyer whom the testator met through the defendant's horse racing business - Milen met with the testator several times to discuss estate planning and the drafting of a will - The plaintiff brought an action challenging the will, asserting that there were suspicious circumstances surrounding the preparation and execution of the will and that the court should make an adverse inference against the defendant because she chose not to call the second witness to the will (Watt) who was employed on the farm and had interacted daily with the testator - The Alberta Court of Queen's Bench rejected the assertion - By the time the plaintiff had put in its case, it was the defendant's view that the plaintiff had failed to prove suspicious circumstances and had failed to prove that the testator did not have testamentary capacity - It was unnecessary to call Watt as a witness - In any event, the court would not exercise its discretion to declare an adverse inference to be drawn - The evidence that Watt would have given as to the formalities of the will was given by Milen - Therefore, Watt's evidence as to the validity of the will was not strictly necessary - See paragraphs 104 to 129.

Family Law - Topic 6610

Dependents' relief legislation - General principles - Moral obligation of testator - General - The testator owned a farm - He had two children (the plaintiff and the defendant) - When the plaintiff was between 18 and 22 years old, the testator bought him farmland and gave him cattle - The plaintiff used these assets to buy more land and cattle - When he was 30 years old, the plaintiff had a farming accident which left him paralyzed from the chest down for the rest of his life - After the testator's wife died in December 1973, the defendant moved from Edmonton to live with the testator on the testator's farm where she looked after the testator and assumed a major role of managing the farm - She also went into a business of training and boarding race horses on that farm - The testator died in 2001 at the age of 92 - In his will, which he made in August 2000, he left all of his property to the defendant, whom he also made the executor of his will - Three months before he passed away, the testator executed transfers of all his farm and mineral titles into joint names with the defendant - The will and transfers were prepared by Milen, a lawyer whom the testator met through the defendant's horse racing business - Milen met with the testator several times to discuss estate planning and the drafting of a will - The plaintiff brought an action challenging the will and transfers - The plaintiff applied under the Family Relief Act for relief on the basis that he was disabled and required testamentary relief - The plaintiff claimed that the testator had a moral obligation to provide for him - The Alberta Court of Queen's Bench dismissed the application - The testator had no legal duty to provide for the plaintiff - If the court was mistaken, it held that the plaintiff was required to deplete his estate for his support before it could declare that the testator's estate owed anything to the plaintiff - On the basis of the plaintiff's income and expenditures at the time of the testator's death, the testator did not owe anything to the plaintiff - The plaintiff met his needs and maintenance requirements and would continue to do so into the foreseeable future - Further, the testator took steps to provide for his son that would certainly meet the community standards expected of a parent - He took substantial and effective steps to provide for the plaintiff with the gifts of land to the plaintiff when the plaintiff was very young, and by other support provided at that point - The plaintiff, as an independent child, had no moral claim for some provision from the estate of his father - See paragraphs 568 to 588.

Family Law - Topic 6680

Dependents' relief legislation - Considerations in making awards - General - The testator owned a farm - He had two children (the plaintiff and the defendant) - When the plaintiff was between 18 and 22 years old, the testator bought him farmland and gave him cattle - The plaintiff used these assets to buy more land and cattle - When he was 30 years old, the plaintiff had a farming accident which left him paralyzed from the chest down for the rest of his life - After the testator's wife died in December 1973, the defendant moved from Edmonton to live with the testator on the testator's farm where she looked after the testator and assumed a major role of managing the farm - She also went into a business of training and boarding race horses on that farm - The testator died in 2001 at the age of 92 - In his will, which he made in August 2000, he left all of his property to the defendant, whom he also made the executor of his will - Three months before he passed away, the testator executed transfers of all his farm and mineral titles into joint names with the defendant - The will and transfers were prepared by Milen, a lawyer whom the testator met through the defendant's horse racing business - Milen met with the testator several times to discuss estate planning and the drafting of a will - The plaintiff brought an action, challenging the will and transfers - The plaintiff applied under the Family Relief Act for relief on the basis that he was disabled and required testamentary relief - The Alberta Court of Queen's Bench held that the testator had no legal or moral obligation to the plaintiff - However, if it was incorrect the court addressed how the estate should be divided - The testator had a legal obligation to the defendant (unjust enrichment) - In assessing competing obligations, the court considered: the overall size of the estate; the income and resources of the various competing potential recipients; the present and future requirements of the persons asserting a right to the estate, as dependant on age, health, lifestyle, that were required to meet an adequate standard of support and maintenance; the legitimate expectations and lifestyles of the competing potential recipients; the moral obligation that society placed on a person to maintain and support persons in certain relationships and circumstances; and other facts that might negate a right to receive a part of the estate - The court found that the testator intended to provide for the plaintiff when the plaintiff was very young and for the defendant on his death - The testator's will and action in his lifetime provided for both his children and he met the threshold of adequate provision for proper maintenance and support of the plaintiff - See paragraphs 589 to 611.

Family Law - Topic 6682

Dependents' relief legislation - Considerations in making awards - Moral duty of deceased - [See Family Law - Topic 6610 ].

Family Law - Topic 6682.1

Dependents' relief legislation - Considerations in making awards - Legal obligations of deceased - The testator owned a farm - He had two children (the plaintiff and the defendant) - When the plaintiff was between 18 and 22 years old, the testator bought him farmland and gave him cattle - The plaintiff used these assets to buy more land and cattle - When he was 30 years old, the plaintiff had a farming accident which left him paralyzed from the chest down for the rest of his life - After the testator's wife died in December 1973, the defendant moved from Edmonton to live with the testator on the testator's farm where she looked after the testator and assumed a major role of managing the farm - She also went into a business of training and boarding race horses on that farm - The testator died in 2001 at the age of 92 - In his will, which he made in August 2000, he left all of his property to the defendant, whom he also made the executor of his will - Three months before he passed away, the testator executed transfers of all his farm and mineral titles into joint names with the defendant - The will and transfers were prepared by Milen, a lawyer whom the testator met through the defendant's horse racing business - Milen met with the testator several times to discuss estate planning and the drafting of a will - The plaintiff brought an action challenging the will and transfers - The plaintiff applied under the Family Relief Act for relief on the basis that he was disabled and required testamentary relief - The first of the two part test for relief suggested that a legal obligation was one that arose during the testator's life - The plaintiff argued that the testator had a legal obligation to him under the Maintenance Order Act to provide support to him during the testator's lifetime - The Alberta Court of Queen's Bench dismissed the application - Section 2(1) of the Maintenance Order Act required a father or mother to provide maintenance to a disabled child, or a destitute child, that was unable to work - The test for support under the Maintenance Order Act was a needs test and was restricted to adequate food, clothing, medical aid and lodging - The plaintiff certainly did not make an application for such relief during the testator's life time, nor did the evidence support that he would have been successful - According to the evidence, the plaintiff was well able to support himself and his family at least up to the time of trial - He could not be considered to have been "destitute" while the testator was alive - A destitute person was one who was literally impoverished and without assets - Clearly, the plaintiff did not meet that requirement - See paragraphs 467 to 478.

Family Law - Topic 6682.1

Dependents' relief legislation - Considerations in making awards - Legal obligations of deceased - The testator owned a farm - He had two children (the plaintiff and the defendant) - When the plaintiff was between 18 and 22 years old, the testator bought him farmland and gave him cattle - The plaintiff used these assets to buy more land and cattle - When he was 30 years old, the plaintiff had a farming accident which left him paralyzed from the chest down for the rest of his life - After the testator's wife died in December 1973, the defendant moved from Edmonton to live with the testator on the testator's farm where she looked after the testator and assumed a major role of managing the farm - She also went into a business of training and boarding race horses on that farm - The testator died in 2001 at the age of 92 - In his will, which he made in August 2000, he left all of his property to the defendant, whom he also made the executor of his will - Three months before he passed away, the testator executed transfers of all his farm and mineral titles into joint names with the defendant - The will and transfers were prepared by Milen, a lawyer whom the testator met through the defendant's horse racing business - Milen met with the testator several times to discuss estate planning and the drafting of a will - The plaintiff brought an action challenging the will and transfers - The plaintiff applied under the Family Relief Act for relief on the basis that he was disabled and required testamentary relief - For an adult child to seek testamentary relief, he had to be a dependant as defined by s. 1(d) of the Family Relief Act: "a child of the deceased who is 18 years of age or over at the time of the deceased's death and unable by physical or mental disability to earn a livelihood" - The Alberta Court of Queen's Bench dismissed the plaintiff's application - The plaintiff was disabled and was at the date of the testator's death - The plaintiff's income, derived from farming income, at the date of the testator's death was $39,000 to $49,000 and his expenses totaled $28,000 - Accordingly, the plaintiff was capable of and was earning a livelihood - Taking all of the factors into account, the plaintiff's lifestyle before and after the testator's death remained about the same - The plaintiff was retired, but that meant that his farming income was supplemented by his pension entitlement - Any medical expenses were well within his income and did not need to be covered by the testator's estate - The testator had no legal obligations to provide for the plaintiff - See paragraphs 479 to 561.

Gifts - Topic 554

Gifts inter vivos - Presumption of gift - Advancement - Transfers from parent or grandparent to children - The testator owned a farm - He had two children (the plaintiff and the defendant) - When the plaintiff was between 18 and 22 years old, the testator bought him farmland and gave him cattle - The plaintiff used these assets to buy more land and cattle - When he was 30 years old, the plaintiff had a farming accident which left him paralyzed from the chest down for the rest of his life - After the testator's wife died in December 1973, the defendant moved from Edmonton to live with the testator on the testator's farm where she looked after the testator and assumed a major role of managing the farm - She also went into a business of training and boarding race horses on that farm - The testator died in 2001 at the age of 92 - In his will, which he made in August 2000, he left all of his property to the defendant, whom he also made the executor of his will - Three months before he passed away, the testator executed transfers of all his farm and mineral titles into joint names with the defendant - The will and transfers were prepared by Milen, a lawyer whom the testator met through the defendant's horse racing business - Milen met with the testator several times to discuss estate planning - The plaintiff brought an action challenging the transfers, asserting that if the land transfers were valid, the presumption of a resulting trust arose - The Alberta Court of Queen's Bench rejected the assertion - The presumption of advancement applied to this case because that was the law when the testator executed the transfers and when he died - To apply the law retrospectively would be unfair to the testator - Accordingly, it was the plaintiff's responsibility to rebut the presumption, which he had not done - Even if the law to be applied in this situation were that the inter vivos transfer could be a resulting trust, the actions of the parties, including the testator, led inevitably to the conclusion that the testator intended for the property to transfer as a gift from him to the defendant, that is there was a presumption of advancement based on the facts of this case - See paragraphs 414 to 435.

Practice - Topic 550

Parties - Death of a party - General - The testator owned a farm - He had two children (the plaintiff and the defendant) - When the plaintiff was between 18 and 22 years old, the testator bought him farmland and gave him cattle - The plaintiff used these assets to buy more land and cattle - When he was 30 years old, the plaintiff had a farming accident which left him paralyzed from the chest down for the rest of his life - After the testator's wife died in December 1973, the defendant moved from Edmonton to live with the testator on the testator's farm where she looked after the testator and assumed a major role of managing the farm - She also went into a business of training and boarding race horses on that farm - The testator died in 2001 at the age of 92 - In his will, which he made in August 2000, he left all of his property to the defendant, whom he also made the executor of his will - Three months before he passed away, the testator executed transfers of all his farm and mineral titles into joint names with the defendant - The will and transfers were prepared by Milen, a lawyer whom the testator met through the defendant's horse racing business - Milen met with the testator several times to discuss estate planning and the drafting of a will - The plaintiff brought an action, challenging the will and transfers - The plaintiff applied under the Family Relief Act for relief on the basis that he was disabled and required testamentary relief - The plaintiff died before judgment was rendered - Counsel for both parties agreed that the plaintiff's death was relevant and should be considered - The Alberta Court of Queen's Bench concluded that it was proper to take judicial notice of the date of the plaintiff's death and grant a nunc pro tunc order, as requested by the plaintiff dating the judgment back to the day before the plaintiff's death, that was November 8, 2008 - See paragraphs 624 to 631.

Real Property - Topic 3721

Joint estates - Joint tenancies - General - The testator owned a farm - He had two children (the plaintiff and the defendant) - When the plaintiff was between 18 and 22 years old, the testator bought him farmland and gave him cattle - The plaintiff used these assets to buy more land and cattle - When he was 30 years old, the plaintiff had a farming accident which left him paralyzed from the chest down for the rest of his life - After the testator's wife died in December 1973, the defendant moved from Edmonton to live with the testator on the testator's farm where she looked after the testator and assumed a major role of managing the farm - She also went into a business of training and boarding race horses on that farm - The testator died in 2001 at the age of 92 - In his will, which he made in August 2000, he left all of his property to the defendant, whom he also made the executor of his will - Three months before he passed away, the testator executed transfers of all his farm and mineral titles into joint names with the defendant - The will and transfers were prepared by Milen, a lawyer whom the testator met through the defendant's horse racing business - Milen met with the testator several times to discuss estate planning - The plaintiff brought an action, challenging the transfers, asserting that there were a number of suspicious circumstances surrounding the execution of the inter vivos transfers: the testator's diagnosis of dementia nine days before the transfer; the testator's transient ischemic attack during his hospitalization in October 2000; the fiduciary relationship between the testator and the defendant, in which the defendant could dominate the testator; the transfers were drafted and witnessed by the defendant's business associate, Milen; the testator was not provided independent legal advice prior to the transfers; and the testator was not advised of the monetary value of the land he was transferring - The Alberta Court of Queen's Bench held that the testator had capacity when he executed the transfers - The instructions for the transfers had been given before the testator experienced health problems in October 2000 - From Milen's evidence, there was not much to do on the date of execution of the transfers except ensure that the testator still had capacity to sign - Milen did so - There was no evidence to substantiate that the testator did not have capacity on the date of execution - See paragraphs 392 to 408.

Real Property - Topic 3721

Joint estates - Joint tenancies - General - The testator owned a farm - He had two children (the plaintiff and the defendant) - When the plaintiff was between 18 and 22 years old, the testator bought him farmland and gave him cattle - The plaintiff used these assets to buy more land and cattle - When he was 30 years old, the plaintiff had a farming accident which left him paralyzed from the chest down for the rest of his life - After the testator's wife died in December 1973, the defendant moved from Edmonton to live with the testator on the testator's farm where she looked after the testator and assumed a major role of managing the farm - She also went into a business of training and boarding race horses on that farm - The testator died in 2001 at the age of 92 - In his will, which he made in August 2000, he left all of his property to the defendant, whom he also made the executor of his will - Three months before he passed away, the testator executed transfers of all his farm and mineral titles into joint names with the defendant - The will and transfers were prepared by Milen, a lawyer whom the testator met through the defendant's horse racing business - Milen met with the testator several times to discuss estate planning - The plaintiff brought an action challenging the transfers, asserting that the testator was subject to undue influence when he executed the transfers - The Alberta Court of Queen's Bench rejected the assertion - At the time the transfers were executed, the testator was not sick or unwell in any way - The situation between him and the defendant did not give rise to the presumption that the defendant exerted dominance over the testator - Aside from some minor evidence about a couple of times that the defendant yelled at the testator, there was simply no evidence to establish that the defendant was dominant over the testator - The evidence established that the defendant was a caring family member - The court found that the testator executed the transfers as a result of his own full, free and informed thought - See paragraphs 409 to 413.

Restitution - Topic 62

Unjust enrichment - General - What constitutes - The testator owned a farm - He had two children (the plaintiff and the defendant) - When the plaintiff was between 18 and 22 years old, the testator bought him farmland and gave him cattle - The plaintiff used these assets to buy more land and cattle - When he was 30 years old, the plaintiff had a farming accident which left him paralyzed from the chest down for the rest of his life - After the testator's wife died in December 1973, the defendant moved from Edmonton to live with the testator on the testator's farm where she looked after the testator and assumed a major role of managing the farm - She also went into a business of training and boarding race horses on that farm - The testator died in 2001 at the age of 92 - In his will, which he made in August 2000, he left all of his property to the defendant, whom he also made the executor of his will - Three months before he passed away, the testator executed transfers of all his farm and mineral titles into joint names with the defendant - The will and transfers were prepared by Milen, a lawyer whom the testator met through the defendant's horse racing business - Milen met with the testator several times to discuss estate planning and the drafting of a will - The plaintiff brought an action challenging the will and transfers - The Alberta Court of Queen's Bench held that in the event that the will and transfers were found to be invalid, the defendant had a claim against the estate for unjust enrichment - The defendant obtained post-secondary education, but gave up any personal career aspirations so she could assist the testator on the farm - She never married or had children - She spent the vast majority of her life on the farm and looking after the testator's needs - She received no compensation for these services - The testator was unjustly enriched - The remedy for unjust enrichment was a constructive trust - Given the number of years that the defendant lived on the farm and contributed her labour and financial support, it would be next to impossible to quantify her contribution - See paragraphs 632 to 663.

Trusts - Topic 2308

Constructive trusts - General principles - Circumstances when imposed - [See Restitution - Topic 62 ].

Trusts - Topic 2346

Constructive trusts - Basis for imposition - Unjust enrichment - [See Restitution - Topic 62 ].

Wills - Topic 302

Testamentary capacity - General principles - What constitutes - The testator owned a farm - He had two children (the plaintiff and the defendant) - When the plaintiff was between 18 and 22 years old, the testator bought him farmland and gave him cattle - The plaintiff used these assets to buy more land and cattle - When he was 30 years old, the plaintiff had a farming accident which left him paralyzed from the chest down for the rest of his life - After the testator's wife died in December 1973, the defendant moved from Edmonton to live with the testator on the testator's farm where she looked after the testator and assumed a major role of managing the farm - She also went into a business of training and boarding race horses on that farm - The testator died in 2001 at the age of 92 - In his will, which he made in August 2000, he left all of his property to the defendant, whom he also made the executor of his will - Three months before he passed away, the testator executed transfers of all his farm and mineral titles into joint names with the defendant - The will and transfers were prepared by Milen, a lawyer whom the testator met through the defendant's horse racing business - Milen met with the testator several times to discuss estate planning and the drafting of a will - The plaintiff brought an action challenging the will, asserting that the testator lacked testamentary capacity to execute the will - The plaintiff cited the family observations of the testator's deterioration in April 2000, Milen's failure to assess formally the testator's testamentary capacity, the diagnosis of dementia in November 2000, approximately three months after the will was executed and the testator's probable oxygen levels at the time the will was executed - The Alberta Court of Queen's Bench held that the testator had testamentary capacity - The medical evidence put forward by the defendant from qualified expert opinions were supported by the evidence - The testator was of a sound and disposing mind when he gave instructions for and executed his will in August 2000 - Oxygen saturation levels did not necessarily change cognitive function - Signs and symptoms of dementia would have been clearly noticeable to family members and people around the patient - No such signs had been observed - See paragraphs 132 to 366.

Wills - Topic 1501

Preparation and execution - General - The testator owned a farm - He had two children (the plaintiff and the defendant) - When the plaintiff was between 18 and 22 years old, the testator bought him farmland and gave him cattle - The plaintiff used these assets to buy more land and cattle - When he was 30 years old, the plaintiff had a farming accident which left him paralyzed from the chest down for the rest of his life - After the testator's wife died in December 1973, the defendant moved from Edmonton to live with the testator on the testator's farm where she looked after the testator and assumed a major role of managing the farm - She also went into a business of training and boarding race horses on that farm - The testator died in 2001 at the age of 92 - In his will, which he made in August 2000, he left all of his property to the defendant, whom he also made the executor of his will - Three months before he passed away, the testator executed transfers of all his farm and mineral titles into joint names with the defendant - The will and transfers were prepared by Milen, a lawyer whom the testator met through the defendant's horse racing business - Milen met with the testator several times to discuss estate planning and the drafting of a will - The plaintiff brought an action challenging the will, asserting that there were suspicious circumstances surrounding the preparation and execution of the will, inter alia, that the will was executed in secrecy from the plaintiff - The Alberta Court of Queen's Bench rejected the assertion - There was simply no evidence of any attempt or intention to prepare the will in secrecy from the plaintiff - The fact that the plaintiff was not present did not suggest that it was done in secret - The court did not know of any law that suggested that all children had to know about their parents' preparation of a will - Therefore, even if the testator was surreptitious about the preparation of his will, that, in and of itself, was no reason to raise suspicious circumstances - See paragraphs 54 and 55.

Wills - Topic 1501

Preparation and execution - General - The testator owned a farm - He had two children (the plaintiff and the defendant) - When the plaintiff was between 18 and 22 years old, the testator bought him farmland and gave him cattle - The plaintiff used these assets to buy more land and cattle - When he was 30 years old, the plaintiff had a farming accident which left him paralyzed from the chest down for the rest of his life - After the testator's wife died in December 1973, the defendant moved from Edmonton to live with the testator on the testator's farm where she looked after the testator and assumed a major role of managing the farm - She also went into a business of training and boarding race horses on that farm - The testator died in 2001 at the age of 92 - In his will, which he made in August 2000, he left all of his property to the defendant, whom he also made the executor of his will - Three months before he passed away, the testator executed transfers of all his farm and mineral titles into joint names with the defendant - The will and transfers were prepared by Milen, a lawyer whom the testator met through the defendant's horse racing business - Milen met with the testator several times to discuss estate planning and the drafting of a will - The plaintiff brought an action, challenging the will, asserting that there were suspicious circumstances surrounding the preparation and execution of the will, inter alia, that the will was prepared by a lawyer who was the defendant's friend and business partner and who had a vested interest in the will because he boarded his horses on the farm and was defending the will he had prepared - The Alberta Court of Queen's Bench rejected the assertion - Milen did nothing to suggest that the court should not trust him - There was nothing illegal or unethical in Milen's behaviour in preparing the will - There was nothing in the case law, the statute law or the Rules of Law Society to suggest that lawyers could not do legal work for business partners - Finally, the court was not aware of anything to suggest that a lawyer could not perform legal work for a friend - See paragraphs 56 to 70.

Wills - Topic 1501

Preparation and execution - General - The testator owned a farm - He had two children (the plaintiff and the defendant) - When the plaintiff was between 18 and 22 years old, the testator bought him farmland and gave him cattle - The plaintiff used these assets to buy more land and cattle - When he was 30 years old, the plaintiff had a farming accident which left him paralyzed from the chest down for the rest of his life - After the testator's wife died in December 1973, the defendant moved from Edmonton to live with the testator on the testator's farm where she looked after the testator and assumed a major role of managing the farm - She also went into a business of training and boarding race horses on that farm - The testator died in 2001 at the age of 92 - In his will, which he made in August 2000, he left all of his property to the defendant, whom he also made the executor of his will - Three months before he passed away, the testator executed transfers of all his farm and mineral titles into joint names with the defendant - The will and transfers were prepared by Milen, a lawyer whom the testator met through the defendant's horse racing business - Milen met with the testator several times to discuss estate planning and the drafting of a will - The plaintiff brought an action, challenging the will, asserting that there were suspicious circumstances surrounding the preparation and execution of the will, inter alia, that the testator was not provided with independent legal advice - The Alberta Court of Queen's Bench rejected the assertion - Milen was the testator's independent legal advice - There was no reason not to accept Milen's evidence in its entirety as to what happened during the preparation and execution of the will - Milen gave evidence that up until the time he dealt with the testator and not until after the testator's death did Milen give the defendant any legal advice or act for her in any capacity as a lawyer - Therefore, the court concluded that the testator was being given independent legal advice by Milen - See paragraph 71.

Wills - Topic 1534

Preparation and execution - Signature - Place of signature - The testator owned a farm - He had two children (the plaintiff and the defendant) - When the plaintiff was between 18 and 22 years old, the testator bought him farmland and gave him cattle - The plaintiff used these assets to buy more land and cattle - When he was 30 years old, the plaintiff had a farming accident which left him paralyzed from the chest down for the rest of his life - After the testator's wife died in December 1973, the defendant moved from Edmonton to live with the testator on the testator's farm where she looked after the testator and assumed a major role of managing the farm - She also went into a business of training and boarding race horses on that farm - The testator died in 2001 at the age of 92 - In his will, which he made in August 2000, he left all of his property to the defendant, whom he also made the executor of his will - Three months before he passed away, the testator executed transfers of all his farm and mineral titles into joint names with the defendant - The will and transfers were prepared by Milen, a lawyer whom the testator met through the defendant's horse racing business - Milen met with the testator several times to discuss estate planning and the drafting of a will - The plaintiff brought an action challenging the will, asserting that there were suspicious circumstances surrounding the preparation and execution of the will, inter alia, that the testator's instructions were provided at the horse races and the will was executed at the testator's home - The Alberta Court of Queen's Bench rejected the assertion - There was nothing sinister in this - There was nothing requiring lawyers to take their instructions in their office nor requiring that wills or other documents had to be executed in lawyers' offices - Further, this behaviour was consistent with what rural lawyers did - See paragraphs 72 and 73.

Wills - Topic 1704

Preparation and execution - Undue influence - What constitutes - General - The testator owned a farm - He had two children (the plaintiff and the defendant) - When the plaintiff was between 18 and 22 years old, the testator bought him farmland and gave him cattle - The plaintiff used these assets to buy more land and cattle - When he was 30 years old, the plaintiff had a farming accident which left him paralyzed from the chest down for the rest of his life - After the testator's wife died in December 1973, the defendant moved from Edmonton to live with the testator on the testator's farm where she looked after the testator and assumed a major role of managing the farm - She also went into a business of training and boarding race horses on that farm - The testator died in 2001 at the age of 92 - In his will, which he made in August 2000, he left all of his property to the defendant, whom he also made the executor of his will - Three months before he passed away, the testator executed transfers of all his farm and mineral titles into joint names with the defendant - The will and transfers were prepared by Milen, a lawyer whom the testator met through the defendant's horse racing business - Milen met with the testator several times to discuss estate planning and the drafting of a will - The plaintiff brought an action challenging the will, asserting that the defendant exercised undue influence on the testator - The plaintiff argued that the testator's will was overborne by acts of coercion or fraud where the testator as an elderly parent was vulnerable to the fiduciary relationship, duty, and relationship of the defendant as his adult child - The Alberta Court of Queen's Bench held that there was no undue influence - At the time the will was made, the testator was not sick or unwell in any way - The situation between him and the defendant did not give rise to the presumption that the defendant exerted dominance over the testator - Aside from some minor evidence about a couple of times that the defendant yelled at the testator, there was simply no evidence to establish that the defendant was dominant over the testator - The evidence established that the defendant was a caring family member - The court found that the testator entered into making the will as a result of his own full, free and informed thought - See paragraphs 367 to 391.

Cases Noticed:

Hay Estate, Re, [1995] 2 S.C.R. 876; 183 N.R. 1; 82 O.A.C. 161, refd to. [para. 10].

Vout v. Hay - see Hay Estate, Re.

Hall v. Bennett Estate et al. (2003), 171 O.A.C. 182; 64 O.R.(3d) 191 (C.A.), refd to. [para. 12].

Murphy v. Lamphier (1914), 31 O.L.R. 287 (Div. Ct.), affd. (1914), 32 O.L.R. 19 (S.C.), dist. [para. 76].

McCardell Estate v. Cushman (1989), 107 A.R. 161 (Q.B.), refd to. [para. 76].

Banks v. Goodfellow (1870), L.R. 5 Q.B. 549 (Q.B.), refd to. [para. 93].

Vector Energy Inc. v. Pacific Gas and Electric Co., [2000] A.R. Uned. 165 (Q.B.), refd to. [para. 114].

Babchuk v. Kutz et al. (2006), 411 A.R. 145 (Q.B.), dist. [para. 121].

Rufenack v. Hope Mission et al. (2002), 328 A.R. 148; 2002 ABQB 1055, refd to. [para. 135].

Scramstad et al. v. Stannard (1996), 188 A.R. 23; 40 Alta. L.R.(3d) 324 (Q.B.), refd to. [para. 293].

Lynch Estate v. Lynch Estate (1993), 138 A.R. 41; 8 Alta. L.R.(3d) 291 (Q.B.), refd to. [para. 294].

Houle Estate v. Houle (1996), 186 A.R. 359 (Q.B.), refd to. [para. 294].

Baker Estate v. Myhre (1995), 168 A.R. 248 (Q.B.), dist. [para. 324].

Leger et al. v. Poirier, [1944] S.C.R. 152, refd to. [para. 332].

Ravnyshyn et al. v. Drys, [2005] B.C.T.C. 561 (S.C.), refd to. [para. 369].

Sample Estate, Re (1955), 15 W.W.R.(N.S.) 193 (Sask. C.A.), refd to. [para. 370].

Cosgrove Estate, Re (1988), 73 Sask.R. 42 (Surr. Ct.), refd to. [para. 370].

Banton v. Banton et al. (1998), 66 O.T.C. 161 (Gen. Div.), refd to. [para. 371].

Gamache v. Gamache (2005), 389 A.R. 256; 2005 ABQB 944, refd to. [para. 372].

Craig v. Lamoureux, [1920] A.C. 349; [1920] C.C.S. No. 151 (P.C.), refd to. [para. 372].

Goodman Estate v. Geffen, [1991] 2 S.C.R. 353; 127 N.R. 241; 125 A.R. 81; 14 W.A.C. 81, refd to. [para. 379].

Canadian Imperial Bank of Commerce v. Ohlson (1997), 209 A.R. 140; 160 W.A.C. 140 (C.A.), refd to. [para. 382].

Stewart v. Book (1992), 130 A.R. 344 (Q.B.), refd to. [para. 382].

Mathieu v. San Michel, 1956 CarswellQue 36 (S.C.C.), refd to. [para. 392].

Craig (Deceased), Re, [1971] Ch. 95, refd to. [para. 410].

Pecore v. Pecore et al., [2007] 1 S.C.R. 795; 361 N.R. 1; 224 O.A.C. 330; 2007 SCC 17, appld. [para. 414].

Alberts Estate, Re (1982), 46 A.R. 144; 24 Alta. L.R.(2d) 258 (Q.B.), refd to. [para. 415].

Erickson Estate v. Erickson (2005), 379 A.R. 331 (Q.B.), refd to. [para. 416].

Hossay v. Newman (1998), 22 E.T.R.(2d) 150 (B.C.S.C.), refd to. [para. 416].

Dower v. Public Trustee (Alta.) (1962), 38 W.W.R.(N.S.) 129 (Alta. T.D.), refd to. [para. 416].

Collier v. Yonkers (1967), 61 W.W.R.(N.S.) 761; 65 D.L.R.(2d) 23 (Alta. C.A.), refd to. [para. 416].

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, consd. [para. 442].

Stang v. Stang Estate (1998), 215 A.R. 373; 58 Alta. L.R.(3d) 201; 1998 ABQB 113, refd to. [para. 447].

Ostrander v. Kimball Estate (1996), 146 Sask.R. 64 (Q.B.), refd to. [para. 450].

Siegel v. Siegel Estate et al. (1995), 177 A.R. 282; 35 Alta. L.R.(3d) 321 (Q.B.), refd to. [para. 454].

Gow Estate, Re (1998), 238 A.R. 39; 1998 ABQB 1073 (Surr. Ct.), refd to. [para. 454].

C.D. v. Spinelli Estate (1998), 229 A.R. 137; 84 A.C.W.S.(3d) 610 (Surr. Ct.), refd to. [para. 454].

Broen Estate, Re (2002), 324 A.R. 396; 2002 ABQB 806, refd to. [para. 454].

Woycenko Estate, Re (2002), 315 A.R. 291; 9 Alta. L.R.(4th) 126; 2002 ABQB 640, refd to. [para. 454].

Lumley v. Lumley Estate (2002), 314 A.R. 315; 2002 ABQB 326, refd to. [para. 454].

Gavinchuk v. Mickalyk et al., [2003] A.R. Uned. 628; 27 Alta. L.R.(4th) 291; 2003 ABQB 849, refd to. [para. 454].

B.G.B. Estate, Re, [2003] A.R. Uned. 511; 24 Alta. L.R.(4th) 278; 2003 ABQB 683, refd to. [para. 454].

Bidlock Estate v. Vos - see B.G.B. Estate, Re.

Boychuk Estate, Re (2008), 439 A.R. 313; 2008 ABQB 38, refd to. [para. 459].

Ponich Estate, Re, [2008] A.R. Uned. 586; 42 E.T.R.(3d) 140; 2008 ABQB 542, refd to. [para. 471].

L.M.K. Estate, Re, [2004] A.R. Uned. 603; 11 E.T.R.(3d) 275; 2004 ABQB 664, refd to. [para. 471].

Black v. Kronberger Estate (1989), 81 Sask.R. 106; 18 A.C.W.S.(3d) 864 (Q.B.), affd. (1990), 83 Sask.R. 73; 21 A.C.W.S.(3d) 292 (C.A.), refd to. [para. 471].

Manson v. Shoaf, [1980] 5 W.W.R. 106 (Surr. Ct.), refd to. [para. 471].

Leung v. Leung (1996), 179 A.R. 302; 37 Alta. L.R.(3d) 107 (Q.B.), refd to. [para. 475].

Zwicker v. Zwicker (1994), 152 A.R. 238; 3 R.F.L.(4th) 403 (Q.B.), refd to. [para. 475].

Wani v. Wani (1994), 163 A.R. 319; 52 A.C.W.S.(3d) 373 (Q.B.), refd to. [para. 475].

Protopappas Estate, Re (1987), 78 A.R. 60; 25 E.T.R. 241 (Q.B.), refd to. [para. 490].

Hilstadt Estate, Re (2008), 461 A.R. 211; 2008 ABQB 570, refd to. [para. 492].

Lee Estate, Re, [2006] Northwest Terr. Cases (SC) 13; 22 E.T.R.(3d) 207; 2006 NWTSC 13, refd to. [para. 494].

Carter v. Alberta Conference Corp. of the Seventh Day Adventist Church, [1998] A.J. No. 1479, refd to. [para. 495].

E.A.H., Re (2005), 386 A.R. 187; 2005 ABQB 678, refd to. [para. 500].

Stone v. Stone Estate et al. (1994), 154 A.R. 307; 20 Alta. L.R.(3d) 31 (Q.B.), affd. (1997), 209 A.R. 138; 160 W.A.C. 138; 54 Alta. L.R.(3d) 225 (C.A.), refd to. [para. 500].

Boje Estate, Re (2005), 363 A.R. 288; 343 W.A.C. 288; 250 D.L.R.(4th) 271; 2005 ABCA 73, refd to. [para. 500].

Bowers Estate, Re (1955), 19 W.W.R.(N.S.) 241 (Alta. S.C.), refd to. [para. 500].

Lee Estate, Re, [2006] Northwest Terr. Cases (SC) 13; 22 E.T.R.(3d) 207; 2006 NWTSC 13, refd to. [para. 501].

Pauliuk v. Pauliuk Estate (1986), 73 A.R. 314; 48 Alta. L.R.(2d) 25 (Q.B.), refd to. [para. 503].

Cross and Green v. Currie Estate (1987), 81 N.S.R.(2d) 193; 203 A.P.R. 193; 2 E.T.R. 113 (T.D.), refd to. [para. 606].

Kelly v. Baker et al. (1996), 82 B.C.A.C. 150; 133 W.A.C. 150; 15 E.T.R.(2d) 219 (C.A.), refd to. [para. 608].

Morphy v. Mohr et al., [1998] B.C.T.C. Uned. 59; 1998 CarswellBC 65 (S.C.), refd to. [para. 608].

Smigelski Estate, Re (1968), 64 W.W.R.(N.S.) 456 (Alta. C.A.), refd to. [para. 615].

Willan Estate, Re (1951), 4 W.W.R.(N.S.) 114 (Alta. S.C.), refd to. [para. 616].

Vollrath v. Bruce (2000), 282 A.R. 364; 2000 ABQB 972, refd to. [para. 621].

Barker v. Westminster Trust Co. et al., [1941] 3 W.W.R. 473 (B.C.C.A.), refd to. [para. 625].

Walker v. McDermott, [1931] 1 S.C.R. 94; [1931] 1 D.L.R. 662, refd to. [para. 626].

Monahan v. Nelson, [2006] 6 W.W.R. 645 (B.C.C.A.), refd to. [para. 628].

McMaster, Re, [1957] A.J. No. 64 (S.C.), refd to. [para. 628].

Wetzel v. National Trust Co., [1956] 4 D.L.R.(2d) 1781 (Sask. C.A.), refd to. [para. 628].

Neyedley Estate, Re (2004), 250 Sask.R. 38; 2004 CarswellSask 168 (Q.B.), refd to. [para. 628].

Golverk-Berger v. Berger Estate, 1986 CarswellOnt 658 (Surr. Ct.), refd to. [para. 628].

Hussey v. Palmer, [1972] 1 W.L.R. 1286; 3 All E.R. 744 (C.A.), refd to. [para. 634].

Becker v. Pettkus, [1980] 2 S.C.R. 834; 34 N.R. 384, refd to. [para. 635].

Peter v. Beblow, [1993] 1 S.C.R. 980; 150 N.R. 1; 23 B.C.A.C. 81; 39 W.A.C. 81; 101 D.L.R.(4th) 621, refd to. [para. 636].

Soulos v. Korkontzilas et al., [1997] 2 S.C.R. 217; 212 N.R. 1; 100 O.A.C. 241, refd to. [para. 657].

Sorochan v. Sorochan, [1986] 2 S.C.R. 38; 69 N.R. 81; 74 A.R. 67; 29 D.L.R.(4th) 1, refd to. [para. 657].

Statutes Noticed:

Family Relief Act, R.S.A. 2000, c. F-5, sect. 1(d) [para. 480 et seq.].

Maintenance Order Act, R.S.A. 2000, c. M-2, sect. 2(1) [para. 467].

Authors and Works Noticed:

Feeney, Thomas G., The Canadian Law of Wills (4th Ed. 2000) (2007 Looseleaf Update), p. 2.4 [para. 332].

Sopinka, John, Lederman, Sidney N., and Bryant, Alan W., The Law of Evidence in Canada (2nd Ed. 1999), p. 297 [para. 105].

Counsel:

Robert S. Wachowich and Patrick McAllister (Weir Bowen LLP), for the plaintiff;

David Hawreluk and Alisha Hurley (Bennett Jones LLP), for the defendants.

This action and application were heard on December 3 to 19, 2007, and March 18, 2008, by Moen, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following reasons for judgment on March 31, 2009.