Rufenack v. Hope Mission et al., 2002 ABQB 1055

• Judge: Verville, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: September 09, 2002
• Citations: 2002 ABQB 1055;(2002), 328 A.R. 148 (SurCt)

Rufenack v. Hope Mission (2002), 328 A.R. 148 (SurCt)

MLB headnote and full text

Temp. Cite: [2002] A.R. TBEd. DE.029

Harold Rufenack and Lynne Rufenack (applicants) v. Hope Mission, Slavic Gospel Association Inc., Far East Broadcasting Assoc. of Canada, Whitefields Missionary Society, RBC Ministries and Walter Gnida (respondents)

(Action No. 110489; 2002 ABQB 1055)

Indexed As: Rufenack v. Hope Mission et al.

Alberta Surrogate Court

Judicial District of Edmonton

Verville, J.

December 2, 2002.

Summary:

McRae died at the age of 80. In her last will, she left her entire estate to two friends, the Rufenacks. At issue on this application was whether McRae had testamentary capacity when she made the last will and whether she had revoked an earlier will; if McRae had testamentary capacity when she made the last will should the court impose a trust on the executors in favour of some or all of the charities; and if McRae did not have testamentary capacity when she made the last will, did she have testamentary capacity when she made the earlier will.

The Alberta Surrogate Court held that McRae had testamentary capacity at the time she executed the last will and she had revoked the earlier will. Further, McRae intended to create a secret trust which would benefit various charities, she communicated her intention to the Rufenacks and they accepted to act as trustees in that regard, and she intended that the Rufenacks have discretion as to how to carry out her charitable intent.

Trusts - Topic 372

Creation of trust - Purpose or object - Certainty of objects - The Alberta Surrogate Court stated that "If it is ascertained that a trust object is charitable, then it will not fail for uncertainty; the court has an inherent jurisdiction (cy-près) to compose a scheme, or to direct its officials to draw up a scheme to remove any uncertainty" - See paragraph 161.

Trusts - Topic 1185

Charitable trusts - Failure of charitable trusts - Cy-près doctrine - General charitable intention - [See Trusts - Topic 372 ].

Trusts - Topic 1189

Charitable trusts - Failure of charitable trusts - Cy-près doctrine - Object impracticable - The Alberta Surrogate Court stated that "Where a secret trust is created and a general charitable intention is found, the Court must consider whether the settlor has given the trustees the right to choose the specific charitable institutions. If so, that right may be exercised by the recipient. If the settlor has merely said that the trust property is to be employed for charitable purposes, then the trustees may apply to the court for a scheme. If the charitable objects set out by the settlor are impossible to carry out or impracticable, the cy-près jurisdiction of the Court may be invoked." - See paragraph 164.

Trusts - Topic 1527

Secret trusts - Creation of secret trust - What constitutes a secret trust - McRae died at the age of 80 leaving a substantial estate - Her two friends, the Rufenacks, were the sole beneficiaries under her will -The Alberta Surrogate Court held that McRae intended to create a secret trust which would benefit various charities, she communicated her intention to the Rufenacks and they accepted to act as trustees in that regard - McRae also intended that the Rufenacks have discretion as to how to carry out her charitable intent - McRae understood that she was taking a leap of faith in naming the Rufenacks as beneficiaries, since if they changed their minds there would be no way they would be legally required to benefit the charities -This was consistent with McRae's character, which was to trust individuals completely or not at all.

Trusts - Topic 1606

Secret trusts - Evidence and proof - Standard of proof - The Alberta Surrogate Court stated that "Where no question of fraud arises, the standard of proof in order to establish a secret trust is the ordinary civil standard of proof that is required to establish an ordinary trust" - See paragraph 123.

Wills - Topic 3506

Charitable gifts - General - General or paramount charitable purpose - [See Trusts - Topic 1527 ].

Cases Noticed:

Visnjak v. Jakovich, [1985] B.C.J. No. 1427 (S.C.), refd to. [para. 62].

Vout v. Hay - see Hay Estate, Re.

Hay Estate, Re, [1995] 2 S.C.R. 876; 183 N.R. 1; 82 O.A.C. 161, refd to. [para. 63].

Jankowski v. Pelek Estate (1995), 107 Man.R.(2d) 167; 109 W.A.C. 167 (C.A.), refd to. [para. 122].

Snowden, Re, [1979] 2 All E.R. 172 (Ch. D.), refd to. [para. 123].

Riffel Estate, Re (1987), 64 Sask.R. 190 (Q.B.), refd to. [para. 125].

Champoise v. Champoise-Prost Estate et al. (2000), 140 B.C.A.C. 112; 229 W.A.C. 112 (C.A.), refd to. [para. 127].

Sutherland Estate v. Nicoll Estate, [1944] S.C.R. 253, refd to. [para. 129].

Milsom v. Holien (2001), 40 E.T.R.(2d) 77 (B.C.S.C.), refd to. [para. 130].

Hardy, Re, [1952] 2 D.L.R. 768 (N.S.S.C.), refd to. [para. 143].

Authors and Works Noticed:

Schnurr, B., Estate Litigation (2nd Ed. 1994), vol. 1, pp. 2 to 4 [para. 66].

Waters, Law of Trusts in Canada (2nd Ed. 1984), pp. 215 [para. 125]; 216 [paras. 124, 125, 150]; 220 [para. 153]; 221 [para. 142]; 223 [para. 153]; 513 [para. 159]; 514 [para. 164]; 603 [para. 160]; 611 [para. 161].

Counsel:

Brian Doherty (Doherty Schuldhaus & Mohan), for Harold and Lynne Rufenack;

James H. Odishaw (Odishaw & Odishaw), for Hope Mission;

Andrew J. Lawson (Putman & Lawson), for Slavic Gospel Association Inc., Far East Broadcasting Association of Canada, Whitefields Missionary Society, RBC Ministries and Walter Gnida.

This application was heard on September 9, 2002, by Verville, J., of the Alberta Surrogate Court, Judicial District of Edmonton, who delivered the following decision on December 2, 2002.