Smith Estate, Re, 2002 ABQB 354

• Judge: Romaine, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: April 04, 2002
• Citations: 2002 ABQB 354;(2002), 313 A.R. 169 (SurCt)

Smith Estate, Re (2002), 313 A.R. 169 (SurCt)

MLB headnote and full text

Temp. Cite: [2002] A.R. TBEd. AP.125

In The Matter Of the Estate of Robert Victor Smith - Mark Morrison Trust

(Action No. 86426; 2002 ABQB 354)

Indexed As: Smith Estate, Re

Alberta Surrogate Court

Judicial District of Calgary

Romaine, J.

April 4, 2002.

Summary:

A trial was directed to determine, inter alia, whether or not a will authorized the trustees to encroach upon the capital of the estate in order to pay a life tenant $1,200 per month plus all medical and prescriptions costs as specified in the will.

The Alberta Surrogate Court held the disbursements out of the capital were authorized.

Wills - Topic 7420

Construction - Quantity of interest taken - Life interest - Power to encroach on capital - Smith's will gave Morrison a life tenancy in Smith's residence and directed the trustees to keep the estate's residue invested and to pay from the net income derived therefrom to Morrison, until his death, $1,200 per month plus medical expenses - The Alberta Surrogate Court held that the residue investment clause authorized the trustees to encroach upon the estate's capital to make the payments - The court considered that (1) Smith and Morrison had a close personal relationship for 17 years and had lived as partners for almost five years when the will was executed; (2) they were both ill at the time and neither had a lengthy life expectancy; (3) while it was expected that Morrison would survive Smith, it was clear he could not earn a living and would require large expenditures on drugs; (4) Smith had supported Morrison after receiving an inheritance and prior to that Smith had lived on social assistance; and (5) the residuary beneficiaries were Smith's nieces and nephews, whose parents had shared in the inheritance with Smith - See paragraphs 11 to 19.

Cases Noticed:

Christensen and Nadon v. Martini (1999), 232 A.R. 339; 195 W.A.C. 339 (C.A.), refd to. [para. 11].

Boudreault Estate, Re (2001), 290 A.R. 116 (Sur. Ct.), refd to. [para. 13].

National Trust Co. v. Fleury (1966), 53 D.L.R.(2d) 700 (S.C.C.), refd to. [para. 14].

Goldstein Estate, Re (1984), 51 A.R. 341 (C.A.), refd to. [para. 14].

Krezanosky Estate, Re (1992), 136 A.R. 317 (Q.B.), refd to. [para. 15].

Attorney General v. Liddell (1870), 23 L.T. 690, refd to. [para. 18].

Friend Estate, Re (2000), 270 A.R. 160 (Sur. Ct.), refd to. [para. 27].

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. 27].

Authors and Works Noticed:

Halsbury's Laws of England (1998) (4th Ed. - Reissue), vol. 50, p. 332, para. 462 [para. 12].

Counsel:

J. Bruce McDonald, Q.C., for Royal Trust Corp. of Canada;

Lenard G.L. Mar, for the Public Trustee of Alberta and the Residuary Beneficiaries;

Shaun T. MacIsaac, for Mark Stephen Morrison.

This matter was heard by Romaine, J., of the Alberta Surrogate Court, Judicial District of Calgary, who delivered the following reasons for judgment on April 4, 2002.