Studer Estate v. Studer et al., 2009 SKQB 366

• Judge: Keene, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: September 17, 2009
• Jurisdiction: Saskatchewan
• Citations: 2009 SKQB 366;(2009), 341 Sask.R. 267 (QB)

Studer Estate v. Studer (2009), 341 Sask.R. 267 (QB)

MLB headnote and full text

Temp. Cite: [2009] Sask.R. TBEd. SE.054

Dr. Tyrone Josdal, in his capacity as Executor for the Estate of Berna Lena Studer (applicant) v. Public Guardian and Trustee, on behalf of Graeme Studer, KC Rescue, North East Humane Society, SCAT Street Cat Rescue Program Inc., Meow Foundation, Petland Pets for Life Foundation, Feline Rescue Foundation of Alberta, D'Arcy's Animal Rescue Centre, Peter Studer, Daniel Studer, Robin Studer and Forrest Studer (respondents)

(2009 Q.B.S. No. 1; 2009 SKQB 366)

Indexed As: Studer Estate v. Studer et al.

Saskatchewan Court of Queen's Bench

Judicial Centre of Moose Jaw

Keene, J.

September 17, 2009.

Summary:

The testator's safety deposit box contained her valid 1997 will which provided (clause 3(d)) for the residue of the estate to be invested for 10 years, with the interest paid to the charities outlined in a memorandum kept with the will. The box also contained an unattached, unsigned memorandum which stated that the charities mentioned in clause 3(d) were cat shelters practising a no-kill policy. At the testator's house was found a 2002 typewritten, unsigned letter, listing her bank accounts and directing that the interest be invested and paid to "no-kill cat shelters". The testator's relatives claimed that the letter and memorandum could not be incorporated into the will, resulting in clause 3(d) failing for uncertainty and leaving them inheriting the residue of the estate on an intestacy. The executor submitted that the memorandum and letter were part of the extrinsic evidence upon which the court could find that the will created a valid charitable trust which should be carried out.

The Saskatchewan Court of Queen's Bench agreed that the memorandum and letter could not be incorporated into the will where both post-dated the will. However, the will clearly expressed an intention to benefit charities, creating a charitable trust. The memorandum and letter (extrinsic evidence) determined the beneficiaries of the trust (unnamed no-kill cat shelters). The fact that the description "no-kill cat shelters" created uncertainty did not defeat the charitable trust. The court applied the cy-près doctrine to direct that the executor follow the directions in clause 3(d) to invest the residue of the estate as stipulated for the welfare, protection and care of domestic cats with an emphasis and preference on supporting "no-kill cat shelters". The executor would have sole discretion to select the appropriate recipients.

Trusts - Topic 1102

Charitable trusts - General principles - What constitutes a charitable trust - The testator's safety deposit box contained her valid 1997 will which provided (clause 3(d)) for the residue of the estate to be invested for 10 years, with the interest paid to the charities outlined in a memorandum kept with the will - The box also contained an unattached, unsigned memorandum which stated that the charities mentioned in clause 3(d) were cat shelters practising a no-kill policy - At the testator's house was found a 2002 typewritten, unsigned letter, listing her bank accounts and directing that the interest be invested and paid to "no-kill cat shelters" - The testator's relatives claimed that the letter and memorandum could not be incorporated into the will, resulting in clause 3(d) failing for uncertainty and leaving them inheriting the residue of the estate on an intestacy - The executor submitted that the memorandum and letter were part of the extrinsic evidence upon which the court could find that the will created a valid charitable trust which should be carried out - The Saskatchewan Court of Queen's Bench agreed that the memorandum and letter could not be incorporated into the will where both post-dated the will - However, the will clearly expressed an intention to benefit charities, creating a charitable trust - The memorandum and letter (extrinsic evidence) determined the beneficiaries of the trust (unnamed no-kill cat shelters) - The fact that the description "no-kill cat shelters" created uncertainty did not defeat the charitable trust - The court applied the cy-près doctrine to direct that the executor follow the directions in clause 3(d) to invest the residue of the estate as stipulated for the welfare, protection and care of domestic cats with an emphasis and preference on supporting "no-kill cat shelters" (i.e., not limited to those shelters) - The executor had the sole discretion to select the appropriate recipients.

Trusts - Topic 1185

Charitable trusts - Failure of charitable trusts - Cy-près doctrine - General charitable intention - [See Trusts - Topic 1102 ].

Wills - Topic 8

Testamentary instruments - General principles - Incorporation by reference - [See Trusts - Topic 1102 ].

Wills - Topic 3543

Charitable gifts - Cy-près doctrine - Circumstances when doctrine applied - [See Trusts - Topic 1102 ].

Wills - Topic 3546

Charitable gifts - Cy-près doctrine - Choice of institution with similar objects - [See Trusts - Topic 1102 ].

Wills - Topic 4248

Failure of gifts - Uncertainty - What constitutes - [See Trusts - Topic 1102 ].

Cases Noticed:

Chamberlain Estate, Re, [1976] 1 W.W.R. 464 (Sask. Surr. Ct.), refd to. [para. 35].

Thomas Estate, Re (1996), 11 O.T.C. 16 (Gen. Div.), refd to. [para. 35].

Canada Permanent Trust Co. v. Imperial (Town) (1967), 61 W.W.R.(N.S.) 427, refd to. [para. 52].

Brooks Estate, Re (1969), 68 W.W.R.(N.S.) 132; 1969 CarswellSask 25 (Surr. Ct.), refd to. [para. 54].

Daley Estate, Re, [1987] 6 W.W.R. 381; 64 Sask.R. 175 (Q.B.), refd to. [para. 57].

Fallis Estate, Re, [1972] 2 W.W.R. 883, refd to. [para. 66].

Authors and Works Noticed:

Sherrin, C.H., Barlow, R.F.D., and Wallington, R.A., Williams' Law Relating to Wills (5th Ed. 1980), vol. 1, p. 779 [para. 68].

Counsel:

Ryan Hrechka, for the applicant;

Mitchell Holash, for Peter, Daniel, Robin and Forrest Studer;

Ian Smith, for SCAT Street Cat Rescue Program Inc.

This matter was heard before Keene, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Moose Jaw, who delivered the following judgment on September 17, 2009.