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WILLS - Variation - Contestation of claims - Adequacy of bequests to dependants

Tuesday, April 07, 2020 @ 8:58 AM  


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Appeal by the deceased’s sister from trial judgment finding the deceased’s will which gave his entire estate valued at $250,000 to his sister valid but determining that the two children were entitled to an order under the Dependants’ Relief Act that would eventually result in the entirety of the deceased’s property passing to them. Cross-appeal by the children from the trial judge’s refusal to remove the sister as executor under the will pending this property distribution. The deceased died unexpectedly in 2014 when the children were 14 and 12. He had separated from their mother in 2004 but continued to have a close relationship with his daughters. The trial judge found the deceased created his will with the intention to benefit his children and intended that his sister would hold the entirety of his estate for the benefit of his two children. Although the children were not enrolled in post‑secondary education at the time of trial, the trial judge considered this to be of no moment for the youngest child, who was still in school. With respect to the older child, he found that had resources been available she likely would have taken some form of post-secondary education, and he expected she would still do so. The trial judge ordered a grant of $5,000 cash to each of the children, up to $15,000 per year for each of the children to pursue full‑time education or training for four years or a lump sum payment of $10,000 at age 25 should they choose not to pursue an education, and the vesting of all of the remaining estate assets in the children’s names when the youngest child turned 23. While the sister acknowledged that the will failed to make proper provision for the children, she argued that the trial order was overly generous to them.

HELD:  Appeal and cross-appeal dismissed. It was completely appropriate for the trial judge to consider, and to determine based on extrinsic evidence, the deceased’s subjective intentions when making the will. The trial judge committed no error in finding that the deceased intended that the children alone benefit from his estate. The trial judge clearly grounded his award in the provision for the future costs of living of the children. The award was made by the trial judge to cover the future undefined living expenses of the children. It was, therefore, an award of an amount for their maintenance. The trial judge was not wrong in principle to recognize the moral claim the children had because he no longer needed to provide for himself and could now provide more generously for his children than during his lifetime. In the unique circumstances of this case, the trial order would fulfil the deceased’s known intentions that were not achieved under the terms of the will. Given their stage in life, the children’s future needs were undefined, but their existence was undoubted and there were no others with a moral claim to the estate. There was ample foundation in the evidence to support the findings of fact made by the trial judge that led him to dismiss the application to remove the sister as executor. Under the terms of the trial judgment, the farmland could not be sold without the approval of the children or a court order. The sister was also required to manage the estate in consultation with the children.

Lutz (Litigation Guardian for) v. Lutz Estate, [2020] S.J. No. 50, Saskatchewan Court of Appeal, R.K. Ottenbreit, N.W. Caldwell and R. Leurer JJ.A., February 20, 2020. Digest No. TLD-April62020005