Soule v. Johansen Estate et al., (2011) 521 A.R. 238 (QB)

• Judge: Martin, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: June 02, 2011
• Citations: (2011), 521 A.R. 238 (QB);2011 ABQB 403

Soule v. Johansen Estate (2011), 521 A.R. 238 (QB)

MLB headnote and full text

Temp. Cite: [2011] A.R. TBEd. JL.033

Kim Soule (plaintiff) v. P. David Arnold, Harley C. Earl, Executors of the Estate of Elsie Carrolle Johansen and the Estate of Elsie Carrolle Johansen and the Calgary Humane Society (defendants)

(0901 13241; 2011 ABQB 403)

Indexed As: Soule v. Johansen Estate et al.

Alberta Court of Queen's Bench

Judicial District of Calgary

Martin, J.

June 27, 2011.

Summary:

A mother's will left her $116,000 estate to the Calgary Humane Society and nothing to her 51 year old son because he was a drug user. The son, who was unemployable due to contracting hepatitis C, applied under the Dependant's Relief Act to set aside the will on the ground that he was a dependent entitled to proper maintenance and support from his mother's estate.

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

Family Law - Topic 6604

Dependents' relief legislation - General principles - What constitutes "proper maintenance and support" - The Alberta Court of Queen's Bench stated that the variables for determining what constituted proper maintenance and support were: "(1) the age and health of the dependant; (ii) the needs of the dependant; (iii) likelihood of the needs of the dependant increasing; (iv) station of life of the deceased and the dependant; (v) mode of life to which the dependant ought to be accustomed; (vi) other sources of income of the dependant; (vii) cost of living; and (viii) future contingencies that are reasonably foreseeable." - See paragraph 42.

Family Law - Topic 6613

Dependents' relief legislation - General principles - Moral obligation of testator - Infirm adult dependent - [See Family Law - Topic 6638 ].

Family Law - Topic 6638

Dependents' relief legislation - Persons entitled to relief - Child - Adult child - A mother's will left her $116,000 estate to the Calgary Humane Society and nothing to her 51 year old son because he was a drug user - The son, who was unemployable due to contracting hepatitis C, applied under the Dependant's Relief Act to set aside the will on the ground that he was a dependent entitled to proper maintenance and support from his mother's estate - The Alberta Court of Queen's Bench allowed the application in part - The son was a dependent under s. 1(d) of the Act, as he was unable, by reason of physical disability, to earn a livelihood - Whether his disability resulted from lifestyle choices was not relevant - The son had not worked since 2005 - He was in receipt of government assistance barely sufficient to pay his rent - The mother's will failed to provide proper maintenance and support for her dependent son - She had a moral obligation to support an adult child disabled from earning a livelihood - The son should not be supported by public funds when private funds existed - However, the court declined to award the entire $116,000 estate to the son - The Humane Society was given $10,000 to honour the mother's wishes in part and to defray the Society's costs of being brought into this process.

Family Law - Topic 6680

Dependents' relief legislation - Considerations in making awards - The Alberta Court of Queen's Bench stated that the factors that were relevant to whether the court should exercise its discretion to make an award were: "1. the overall size of the estate; 2. the income and resources of the various competing potential recipients; 3. the present and future requirements of the persons asserting a right to the estate, as dependant on age, health, lifestyle, that are required to meet an adequate standard of support and maintenance; 4. the legitimate expectations and lifestyles of the competing potential recipients; 5. the moral obligation that society places on a person to maintain and support persons in certain relationships and circumstances; and 6. other facts that may negate a right to receive a part of the estate." - See paragraph 44.

Cases Noticed:

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, refd to. [para. 20].

Petrowski v. Petrowski Estate et al. (2009), 466 A.R. 59; 2009 ABQB 196, refd to. [para. 30].

E.A.H., Re (2005), 386 A.R. 187; 2005 ABQB 678, refd to. [para. 35].

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. 35].

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. 35].

Bowers Estate, Re (1955), 19 W.W.R.(N.S.) 241 (Alta. S.C.), refd to. [para. 35].

Carter v. Alberta Conference Corp. of the Seventh Day Adventist Church, [1998] A.J. No. 1479, refd to. [para. 44].

Pauliuk v. Pauliuk Estate (1986), 73 A.R. 314; 48 Alta. L.R.(2d) 25 (Q.B.), refd to. [para. 44].

C.D. v. Spinelli Estate (1998), 229 A.R. 137; 84 A.C.W.S.(3d) 610 (Surr. Ct.), refd to. [para. 44].

B.G.B. Estate, Re, [2003] A.R. Uned. 511; 2003 ABQB 683, refd to. [para. 45].

L.M.K. Estate, Re, [2004] A.R. Uned. 603; 11 E.T.R.(3d) 275; 2004 ABQB 664, refd to. [para. 45].

Ponich Estate, Re (2011), 511 A.R. 190; 2011 ABQB 33, refd to. [para. 46].

Counsel:

James K. Lawson, for the plaintiff;

Kenneth P. Reh and Brian D. West, for the defendant, The Calgary Humane Society;

Edward D. Simper, for the executors.

This application was heard on June 2, 2011, before Martin, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following judgment on June 27, 2011.