Weisbrod v. Weisbrod, 2013 SKQB 282

• Judge: Keene, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: July 26, 2013
• Jurisdiction: Saskatchewan
• Citations: 2013 SKQB 282;(2013), 426 Sask.R. 179 (QB)

Weisbrod v. Weisbrod (2013), 426 Sask.R. 179 (QB)

MLB headnote and full text

Temp. Cite: [2013] Sask.R. TBEd. SE.013

Glenn Douglas Weisbrod (applicant in his capacity as an Executor of the Estate of Ewalt Rudolf Weisbrod and in his personal capacity) v. Michael Weisbrod (respondent in his capacity as an Executor of the Estate of Gary Dale Weisbrod and in his personal capacity)

(2012 SUR No. 174; 2013 SKQB 282)

Indexed As: Weisbrod v. Weisbrod

Saskatchewan Court of Queen's Bench

Judicial Centre of Swift Current

Keene, J.

July 26, 2013.

Summary:

Ewalt Weisbrod had three children, Glenn, Dale and Michael. In 1989, Ewalt sold land to Dale, reserving the mineral rights and oil revenues to himself. In 1992, Ewalt sold more land to Dale and the two signed an agreement under which, on Ewalt's death, the mineral rights and oil revenues would be transferred to Dale. Dale died in 1995. Michael was his executor and sole beneficiary. Ewalt executed a will in 2010. Glenn was his executor and sole beneficiary. Ewalt died in 2010. At issue was whether the 1992 agreement was a testamentary disposition that was revoked by the 2010 will or a valid inter vivos gift.

The Saskatchewan Court of Queen's Bench, having determined that the agreement was not a testamentary disposition, held that it was a valid inter vivos gift.

Choses in Action - Topic 22

General - Definitions - Chose in action - What constitutes - Ewalt Weisbrod had three children, Glenn, Dale and Michael - In 1989, Ewalt sold land to Dale, reserving the mineral rights and oil revenues to himself - In 1992, Ewalt sold more land to Dale and the two signed an agreement under which, on Ewalt's death, the mineral rights and oil revenues would be transferred to Dale - Dale died in 1995 - Michael was his executor and sole beneficiary - Ewalt executed a will in 2010 - Glenn was his executor and sole beneficiary - Ewalt died in 2010 - At issue was whether the 1992 agreement was a testamentary disposition that was revoked by the 2010 will or a valid inter vivos gift - The Saskatchewan Court of Queen's Bench, having determined that the agreement was not a testamentary disposition, held that it was a valid inter vivos gift - The evidence established that Ewalt intended to make a gift, which Dale accepted - It made sense to unite the land with the surface rights - Regarding delivery, the gift could be characterized as a chose in action - In order to be properly effected, a chose in action had to be delivered through a deed or by an instrument of gift - Here, the gift was properly delivered and was effectual through the 1992 agreement - On balance, the agreement constituted the "apt words" of assignment as required under s. 2 of the Choses in Action Act - It was irrelevant that Dale predeceased Ewalt - The agreement took effect on its execution - Dale's estate became the owner of the rights, which became Michael's as sole beneficiary - See paragraphs 18 to 32.

Choses in Action - Topic 301

What constitutes an assignment - General - [See Choses in Action - Topic 22 ].

Gifts - Topic 501

Gifts inter vivos - General principles - Gifts inter vivos - Defined - [See Choses in Action - Topic 22 ].

Gifts - Topic 502

Gifts inter vivos - General principles - Intention required - [See Choses in Action - Topic 22 ].

Gifts - Topic 755

Gifts inter vivos - Elements of valid transfer - Delivery - General - [See Choses in Action - Topic 22 ].

Gifts - Topic 953

Gifts inter vivos - Evidence and proof - Donor's intention - [See Choses in Action - Topic 22 ].

Wills - Topic 4

Testamentary instruments - General principles - What constitutes a testamentary disposition - Ewalt Weisbrod had three children, Glenn, Dale and Michael - In 1989, Ewalt sold land to Dale, reserving the mineral rights and oil revenues to himself - In 1992, Ewalt sold more land to Dale and the two signed an agreement under which, on Ewalt's death, the mineral rights and oil revenues would be transferred to Dale - Dale died in 1995 - Michael was his executor and sole beneficiary - Ewalt executed a will in 2010 - Glenn was his executor and sole beneficiary - Ewalt died in 2010 - At issue was whether the 1992 agreement was a testamentary disposition that was revoked by the 2010 will or a valid inter vivos gift - The Saskatchewan Court of Queen's Bench held that the 1992 agreement was not a testamentary disposition - Three of the four "Turner" factors appeared to indicate that the gift might have been intended to be testamentary: (1) no consideration appeared to have flowed from Dale to Ewalt; (2) the agreement appeared to have no immediate effect; and (3) there was no immediate change in Dale's and Ewalt's positions - However, the fact that the transfer was irrevocable, according to the agreement, was fatal to construing the transfer as a testamentary disposition - It would have been impossible for Ewalt to have changed the agreement without Dale's written consent - In that sense, Ewalt could not revoke the agreement unilaterally - See paragraphs 7 to 17.

Cases Noticed:

Anderson (Administration of Costello Estate) v. Patton, [1948] 2 D.L.R. 202; [1948] 1 W.W.R. 461 (Alta. C.A.), refd to. [para. 7].

Wonnacott v. Loewan (1990), 44 B.C.L.R.(2d) 23 (C.A.), refd to. [para. 7].

Mordo v. Nitting et al., [2006] B.C.T.C. Uned. C43; 2006 BCSC 1761, refd to. [para. 7].

Fenton Estate, Re (1977), 26 N.S.R.(2d) 662; 40 A.P.R. 662 (T.D.), refd to. [para. 9].

Elliott v. Turner and Turner, [1944] 2 D.L.R. 313 (Ont. H.C.), appld. [para. 10].

Anderson Estate v. Polson, [2003] B.C.T.C. 1721; 2003 BCSC 1721, refd to. [para. 10].

Dell'Aquila Estate v. Mellof (1996), 143 Sask.R. 8 (Q.B.), refd to. [para. 18].

Co-operative Trust Co. of Canada v. Mellof - see Dell'Aquila Estate v. Mellof.

Bayoff Estate, Re (2000), 190 Sask.R. 82; 2000 SKQB 23, refd to. [para. 19].

Kibsey Estate v. Stutsky, [1990] 2 W.W.R. 632; 63 Man.R.(2d) 34 (C.A.), refd to. [para. 21].

Lacasse v. Kober, [2004] Sask.R. Uned. 102; 2004 SKQB 250, refd to. [para. 22].

Di Guilo v. Boland, [1958] O.R. 384; 13 D.L.R.(2d) 510 (C.A.), refd to. [para. 26].

Ontario (Attorney General) v. Royal Bank, [1970] 2 O.R. 467; 13 D.L.R.(2d) 510 (C.A.), refd to. [para. 26].

Nesbitt v. Chester et al. (1969), 1 D.L.R.(3d) 655 (Ont. H.C.), refd to. [para. 29].

Dickson v. Chamberland (1927), 2 D.L.R. 429 (Alta. S.C.), refd to. [para. 29].

Smith Estate, Re (1995), 132 Nfld. & P.E.I.R. 316; 410 A.P.R. 316 (Nfld. C.A.), refd to. [para. 30].

Lamb v. Smith Estate - see Smith Estate, Re.

Browne v. Moody, [1936] 2 All E.R. 1695 (P.C.), refd to. [para. 32].

Taylor et al. v. Scurry-Rainbow Oil (Sask.) Ltd. et al., [1999] 5 W.W.R. 424; 170 Sask.R. 222 (Q.B.), refd to. [para. 32].

Statutes Noticed:

Choses in Action Act, R.S.S. 1978, c. C-11, sect. 2 [para. 28].

Authors and Works Noticed:

Oosterhoff, Albert H., Wills and Succession (7th Ed. 2011), pp. 106 [para. 15]; 107, 108 [para. 16].

Ziff, Bruce, Principles of Property Law (5th Ed. 2010), pp. 156 [para. 19]; 158, 159 [para. 24].

Counsel:

Murray Walter, Q.C., for the applicant, Glenn Douglas Weisbrod;

Robert Gibbings, Q.C., for the respondent, Michael Weisbrod.

This application was heard by Keene, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Swift Current, who delivered the following judgment on July 26, 2013.