Quaintance Estate, Re, (2005) 373 A.R. 23 (QB)

• Judge: Watson, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: February 02, 2005
• Citations: (2005), 373 A.R. 23 (QB);2005 ABQB 94

Quaintance Estate, Re (2005), 373 A.R. 23 (QB)

MLB headnote and full text

Temp. Cite: [2005] A.R. TBEd. FE.120

Estate Name: Bertram Sidney Quaintance a.k.a. Bertram Sydney Quaintance

Robin Quaintance (applicant)

(ES01 096719; 2005 ABQB 94)

Indexed As: Quaintance Estate, Re

Alberta Court of Queen's Bench

Surrogate Matter

Judicial District of Calgary

Watson, J.

February 2, 2005.

Summary:

A daughter requested a formal proof of her father's will on the basis of lack of testamentary capacity and undue influence.

The Alberta Court of Queen's Bench, in a judgment reported at (2005), 373 A.R. 8, rejected the motion. The court ordered the will to be accepted for probate as a valid will, and made an order for costs against the daughter.

The daughter appealed. Pending the appeal, she applied for stays of the orders accepting the will as valid and ordering solicitor-client costs against her.

The Alberta Court of Queen's Bench dismissed the application.

Practice - Topic 5854

Judgments and orders - Enforcement of judgments - Stay of - Pending an appeal, a testator's daughter sought a stay of a judgment ordering the will to be accepted for probate as a valid will - The Alberta Court of Queen's Bench dismissed the application - The daughter's appeal raised a serious issue, the level of proof required on the question of whether a will should be made subject to trial, but her application failed on the irreparable harm and balance of convenience tests - Because the daughter was not a beneficiary of the will, she would suffer no harm regardless of how the appeal was decided - Though there was the potential for harm through the estate being distributed, the likelihood of harm by way of expense was greater on behalf of the respondent than on the daughter - The balance of convenience therefore favoured the respondent.

Practice - Topic 5854

Judgments and orders - Enforcement of judgments - Stay of - Pending an appeal, a testator's daughter sought a stay of a judgment ordering solicitor-client costs against her on her unsuccessful application challenging her father's will - The Alberta Court of Queen's Bench dismissed the application - The appeal raised a serious issue - There was a potential for irreparable harm to the daughter in that a stay would immunize her from the enforcement of costs and might enable her to recover costs from the estate if the appeal was successful - However, the balance of convenience favoured the respondent - The daughter was not a beneficiary of the will and therefore not interested monetarily in the outcome of the appeal - The daughter was not resident in the province and had not provided an affidavit to indicate assets that would be recoverable in the jurisdiction - There was a greater risk of irreparable harm by way of expense to the respondent than to the daughter.

Practice - Topic 7455

Costs - Solicitor and client costs - Entitlement to solicitor and client costs - Estates - [See second Practice - Topic 5854 ].

Cases Noticed:

RJR-MacDonald Inc. et Imperial Tobacco Ltd. v. Canada (Procureur général), [1994] 1 S.C.R. 311; 164 N.R. 1; 60 Q.A.C. 241; 111 D.L.R.(4th) 385; 54 C.P.R.(3d) 114; 1994 CarswellQue 120, refd to. [para. 4, footnote 2].

Domo Gasoline Corp. v. St. Albert Trail Properties Inc. et al. (2005), 366 A.R. 13; 2005 ABQB 69, refd to. [para. 8, footnote 3].

Iron et al. v. Saskatchewan (Minister of the Environment and Public Safety) et al., [1993] 6 W.W.R. 1; 109 Sask.R. 49; 42 W.A.C. 49; 103 D.L.R.(4th) 585; 1993 CarswellSask 323 (C.A.), refd to. [para. 13, footnote 4].

Iron et al. v. Norsask Forest Productions Inc. et al. - see Iron et al. v. Saskatchewan (Minister of the Environment and Public Safety) et al.

Ellis v. Friedland (2001), 277 A.R. 126; 242 W.A.C. 126; 2001 ABCA 45, refd to. [para. 17, footnote 6].

Castillo v. Go et al. (2002), 317 A.R. 195; 284 W.A.C. 195; 2002 ABCA 271; 2002 CarswellAlta 1453; 28 C.P.C.(5th) 10, refd to. [para. 17, footnote 6].

Freyberg v. Fletcher Challenge Oil and Gas Inc. et al. (2003), 330 A.R. 130; 299 W.A.C. 130; 2003 ABCA 208, refd to. [para. 17, footnote 6].

Loree v. James, [2004] A.R. Uned. 318; 2004 CarswellAlta 1216; 2004 ABCA 286, refd to. [para. 19, footnote 7].

Statutes Noticed:

Rules of Court (Alta.), rule 508 [para. 21, footnote 8]; rule 593(1) [para. 15, footnote 5].

Counsel:

N.E. Shanks, for the applicant, Robin Quaintance;

R.D. Boettger, Q.C., for the representative, Janice Norma Langley.

This application was heard on February 2, 2005, before Watson, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who orally delivered the following judgment on the same date and filed written reasons on February 14, 2005.