The Court of Queen’s Bench of Alberta (ABQB) has brought new clarity to variation of trusts and trust-to-trust transfers under section 42 of the Trustee Act, RSA 2000, c T-8 [Trustee Act]. In the unusually named case of Twinn v Trustee Act, 2022 ABQB 107, the ABQB was asked to decide what the effect of a prior order of the court was.
This case provides an example what factors a Court may consider when assessing whether a will provides adequate maintenance and support.
This case demonstrates that where a party advances a weak position, the opposing parties may be entitled to an enhanced costs award.
A Plaintiff whose limitation period has run out and who is faced with a Defendant who relies on section 3 of the Limitations Act, RSA 2000, c L-12, will find it next to impossible to escape the Act’s effect.
Alberta’s Wills and Succession Act (WSA) gives immediate family members of a deceased person recourse when that person dies without leaving them sufficient support. However, what about when the family members die?
Diane Schultz chose to attack the 2011 and 2012 wills of her mother, Patricia McAndrew, alleging insufficient testamentary capacity due to dementia, suspicious circumstances, and undue influence by Ms. Schultz’s uncle, Orin Buchanan. Mr. Buchanan preempted Ms. Schultz by seeking advice and direction from the Surrogate Court as Personal Representative of the McAndrew Estate.
A plane crash resulted in the death of a mother and daughter, Sofia and Ms. Odowa, both of whom died intestate. The father of Sofia was appointed as Personal Representative of the estate of Ms. Odowa, for the purpose of representing her estate in ligation resulting from the place of crash. The father applied for a limited grant of administration “as a party interested in the estate”, which the appellant, who was grandmother of Sofia and mother of Ms. Odowa, opposed.
The Court of Appeal upheld the chambers judge’s decision to remove Lance as executor. The chamber judge’s finding that Lance conduct as executor demonstrated he “was not capable of performing his role as executor,” the Court of Appeal found, was reasonable.
One must use caution in creating a holographic will. Holographic wills are handwritten by the testator and while these types of wills are allowed in Alberta, they must meet specific legislative requirements to be found valid. Where a testator writes a holographic will without advice from a lawyer, they may not be aware of these legislative requirements, which runs the risk of the holographic will being found invalid.
In Wade v. Wade, 2021 ABQB 994, two sons Duane and Darren had removed roughly $250,000 from their father’s accounts days before he died via a freshly appointed power of attorney.
