Tucker Estate, Re, (1993) 92 Man.R.(2d) 41 (CA)

• Judge: Philp, Lyon and Kroft, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: November 30, 1993
• Jurisdiction: Manitoba
• Citations: (1993), 92 Man.R.(2d) 41 (CA)

Tucker Estate, Re (1993), 92 Man.R.(2d) 41 (CA);

    61 W.A.C. 41

MLB headnote and full text

Fred Faucher and Rose-Marie Faucher (applicants/respondents) v. Lawrence Elliott Tucker, as Executor of the Estate of Peter Tucker, Deceased (respondent/appellant)

(Suit No. AI 92-30-00793)

Indexed As: Tucker Estate, Re

Manitoba Court of Appeal

Philp, Lyon and Kroft, JJ.A.

November 30, 1993.

Summary:

Faucher applied for advice and direction respecting his entitlement, if any, under a holograph will and codicil. Specifically he sought a declaration that he was entitled to a life estate in certain property.

The Manitoba Court of Queen's Bench, per Mykle, J., in a decision not reported in this series of reports, ordered that Faucher had a life estate in the property. The executor appealed.

The Manitoba Court of Appeal allowed the appeal.

Wills - Topic 7301

Construction, quantity of interest taken - Absolute interest - Absolute gift, with restriction on alienation - In a holograph will, a testator gave all his property to his only son as executor on the trust that certain property would remain unsold and be rented - An insert to the will, of the same date and in the testator's handwriting, concerned rental of the property to one Faucher - Another handwritten codicil directed that after a $1,000 gift to a daughter, the remaining assets were to be the property of the testator's son - The Manitoba Court of Appeal concluded that the testamentary documents did not confer any interest to Faucher and that the son had the undisputed right to the residue - There was an absolute devise and the attempt to restrict alienation was unen­forceable.

Cases Noticed:

Doe d. Hiscocks v. Hiscocks (1839), 5 M. & W. 363, consd. [para. 11].

McLennan, Re, [1940] 1 W.W.R. 465 (Sask.), refd to. [para. 13].

National Trust Co. v. Fleury, [1965] S.C.R. 817, refd to. [para. 13].

McDermot v. Owens Estate (1981), 25 Man.R.(2d) 24 (Co. Ct.), refd to. [para. 13].

Rudaczyk Estate v. Ukrainian Evangelical Baptist Association of Eastern Canada (1989), 69 O.R.(2d) 613 (H.C.), refd to. [para. 13].

Krezanosky Estate, Re (1992), 136 A.R. 317; 6 Alta. L.R.(3d) 145 (Q.B.), refd to. [para. 13].

Banks v. Goodfellow (1870), L.R. 5 Q.B. 549, refd to. [para. 18].

Skinner v. Farquharson (1902), 32 S.C.R. 58, refd to. [para. 19].

Ouderkirk v. Ouderkirk, [1936] S.C.R. 619, refd to. [para. 19].

Bohrmann, In the Estate of, Caesar and Watmough v. Bohrmann, [1938] 1 All E.R. 271, consd. [para. 22].

Burke, Re, [1960] O.R. 26 (C.A.), consd. [para. 26].

Rosher, Re; Rosher v. Rosher (1884), 26 Ch. D. 801, refd to. [para. 43].

Blackburn v. McCallum (1902), 33 S.C.R. 65, refd to. [para. 43].

Beadle v. Gaudette (1985), 21 E.T.R. 117 (B.C.S.C.), refd to. [para. 44].

Wood et al. v. Wood's Estate (1990), 103 N.B.R.(2d) 358; 259 A.P.R. 358; 37 E.T.R. 306 (T.D.), refd to. [para. 44].

Authors and Works Noticed:

Feeney, Thomas G., The Canadian Law of Wills (3rd Ed. 1987), p. 5 [para. 11].

Counsel:

E.W. Olson, Q.C., and A.J. MacKenzie, for the appellant;

D.G. Hill, for the respondent.

This appeal was heard on October 22, 1993, before Philp, Lyon and Kroft, JJ.A., of the Manitoba Court of Appeal.

Kroft, J.A., delivered the following judg­ment for the Court of Appeal on November 30, 1993.