Sparks Estate, Re, (1994) 95 Man.R.(2d) 181 (CA)

• Judge: Scott, C.J.M., Huband and Lyon, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: May 24, 1994
• Jurisdiction: Manitoba
• Citations: (1994), 95 Man.R.(2d) 181 (CA)

Sparks Estate, Re (1994), 95 Man.R.(2d) 181 (CA);

    70 W.A.C. 181

MLB headnote and full text

Beatrice Smith, as Administratrix with Will Annexed of the Estate of Charlotte Marie Sparks, deceased (applicant/respondent) v. Clara McKay and The Public Trustee of Manitoba as litigation guardian of Ryan Sigurdson, an infant (respondents/appellants) and Alma Wenham, Alan Flynn, Margaret Lyall, Gladys Nicholls, Mona Garrioch as Administrator of the Estate of William James Sparks, Ray Moore, Audrey Doreen Edwards, Craig Sigurdson, Douglas Nicholls, Fred Hull, Donald Moore, Eleanor Kshywiecki, Lorraine Doiron, Roxanne Gerardy, Ken Booth, Jr., Debbie Kemp, Karen Dague, John Albert Tully and Janice Lynn Seddon (respondents)

(Suit No. AI 94-30-01672)

Indexed As: Sparks Estate, Re

Manitoba Court of Appeal

Scott, C.J.M., Huband and Lyon, JJ.A.

June 9, 1994.

Summary:

A specific and residuary beneficiary pre­deceased the testatrix. The administratrix of the estate applied for an order determining, inter alia, whether the bequests lapsed.

The Manitoba Court of Queen's Bench, in a decision reported 91 Man.R.(2d) 52, deter­mined that, pursuant to s. 25 of the Wills Act, the specific bequest lapsed and fell into the residue and the residuary bequest passed to the sole surviving residuary beneficiary. The decision was appealed.

The Manitoba Court of Appeal allowed the appeal, holding that s. 25 did not apply to the residuary bequest.

Practice - Topic 7455

Costs - Solicitor and client costs - Enti­tlement to - Estates - The interpretation given s. 25 of the Wills Act in Manitoba decisions differed from the interpretation in other jurisdictions - A trial judge stated that he agreed with the Manitoba interpre­tation and, in any case, in the absence of special circumstances, he was bound by stare decisis and judicial comity to follow the Manitoba interpretation - The Mani­toba Court of Appeal allowed an appeal and awarded solicitor and client costs payable from the estate in favour of both counsel - The court stated that "the point at issue in the appeal was obviously one that had been vexing counsel in this prov­ince for some time and required appellate review" - See paragraphs 15 and 16.

Wills - Topic 4071

Failure of gifts - Lapse - Death of legatee - Residuary bequests - A testatrix left a specific bequest of a quarter of her estate to two of her nieces share and share alike and, after various specific bequests, left equal shares of the remainder of her estate to the two nieces share and share alike - One of the nieces predeceased the testatrix - The trial judge held that, pursuant to s. 25 of the Wills Act, the specific bequest lapsed and fell into the residue of the estate and the residuary bequest passed to the surviving niece - The Manitoba Court of Appeal held that s. 25 only applied to specific gifts.

Wills - Topic 4071

Failure of gifts - Lapse - Death of legatee - Residuary bequests - Section 25 of the Wills Act provided that, unless a contrary intention appeared in the Will, a bequest or devise that failed because the beneficiary predeceased the testator, fell into the resi­due of the estate - The trial judge held that s. 25 applied to specific and residuary gifts - The Manitoba Court of Appeal examined the plain wording of the section, considered the history of the section since its inception in England over 150 years ago and reviewed interpretations given the section in other jurisdictions, and held that s. 25 did not apply to residuary gifts, but only to specific gifts.

Cases Noticed:

Pawlukevich (Paul) Estate v. Pawlukevich (Peter) Estate et al., [1986] 3 W.W.R. 435; 41 Man.R.(2d) 62 (Q.B.), not folld. [para. 5].

Stechishin v. Palmer - see Pawlukevich (Paul) Estate v. Pawlukevich (Peter) Estate et al.

Cera Estate v. Wolfe et al. (1986), 46 Man.R.(2d) 117; 25 E.T.R. 68 (Q.B.), refd to. [para. 5].

Cera, Re - see Cera Estate v. Wolfe et al.

Bank of Nova Scotia v. Chan (1987), 26 E.T.R. 180 (Man. Q.B.), refd to. [para. 7].

Stuart, Re (1964), 47 W.W.R.(N.S.) 500 (B.C.S.C.), refd to. [para. 8].

Sarkin v. Sarkin Estate (1989), 36 E.T.R. 139 (B.C.S.C.), refd to. [para. 12].

Doplihar Estate v. Stopar (1990), 39 E.T.R. 120 (Ont. Gen. Div.), refd to. [para. 12].

Kossak Estate v. Kosak (1990), 37 E.T.R. 235 (Ont. H.C.), refd to. [para. 13].

Redmond Estate, Re (1993), 142 A.R. 205; 50 E.T.R. 167 (Surr. Ct.), refd to. [para. 13].

Doucette v. Fedoruk Estate, [1993] 3 W.W.R. 232; 83 Man.R.(2d) 172; 36 W.A.C. 172 (C.A.), refd to. [para. 14].

Nixey, Re (1972), 31 D.L.R.(3d) 597 (Man. Q.B.), refd to. [para. 14].

Statutes Noticed:

Wills Act, 1837 (U.K.), 7 Will IV & 1 Vict., c. 26, sect. 25 [para. 7].

Wills Act, R.S.B.C. 1960, c. 408, sect. 22 [para. 11].

Wills Act, R.S.M. 1988, c. W-150; C.C.S.M., c. W-150, sect. 25 [para. 1]; sect. 25.2 [para. 14].

Authors and Works Noticed:

Halsbury's Laws of England (4th Ed. 1976), vol. 17, para. 1291; vol. 50, para. 368 [para. 13].

Harvey, Cameron, Annotation to Re Cera (1986), 25 E.T.R. 68, generally [para. 11].

Counsel:

W.R. Van Walleghem and R.J. Van Walleghem, for the appellants;

K. Janovcik, for the respondent.

This appeal was heard on May 24, 1994, before Scott, C.J.M., Huband and Lyon, JJ.A., of the Manitoba Court of Appeal. On June 9, 1994, Scott, C.J.M., delivered the following judgment for the court.