Dhaliwal Estate (Re), 2011 ABQB 279

Court of Queen ’ s Bench of Alberta Citation: Dhaliwal Estate (Re), 2011 ABQB 279 Date: 20110421 Docket: ES03 119741, ES03 119742 Registry: Edmonton In the Matter of the Estate of Bhagwan Singh Dhaliwal And in the Matter of the Estate of Gurcharn Kaur Dhaliwal Between: Teerth Singh Dhaliwal Applicant - and - Amrit Kaur Dhaliwal, Gurmeet Kaur Dhaliwal and Bhupinder Kaur Dhaliwal Respondents _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Brian R.

Burrows _______________________________________________________ [ 1 ] The issue is whether the two Estates should be distributed according to the terms of testamentary instruments, the validity of which is disputed, or according to the terms of agreements, the existence of which is disputed. The issue arises in the context of an Application for Letters of Administration with Will Annexed in the Estate of Bhagwan Dhaliwal, and an Application for Probate in the Estate of Gurcharn Dhaliwal.

[ 2 ] Bhagwan Singh Dhaliwal died on October 11, 2000. His wife, Gurcharn Kaur Dhaliwal, died on March 16, 2002. Teerth Dhaliwal, the Applicant, is their son. Amrit, Gurmeet and Bhupinder Dhaliwal, the Respondents, are their daughters. [ 3 ] Bhagwan Dhaliwal and Gurcharn Dhaliwal executed Wills which had the same terms on September 7, 1979. The Wills contained a primary distribution scheme and a secondary distribution scheme. The primary scheme applied if the testator’s spouse survived the testator for more than 30 days. It provided that:

a) the spouse would inherit 50% of the testator’s estate

b) Teerth Dhaliwal would inherit 30%

c) Amrit Dhaliwal would inherit 10%

d) Gurmeet Dhaliwal would inherit 10% In the primary distribution scheme Bhupinder Dhaliwal would inherit nothing. [ 4 ] The secondary distribution scheme would apply if the testator’s spouse did not survive the testator for more than 30 days. It provided that:

a) the Golden Temple would inherit $1000

b) Teerth Dhaliwal would inherit 70% of the testator’s estate

c) Amrit Dhaliwal would inherit 10% of the testator’s estate

d) Gurmeet Dhaliwal would inherit 10% of the testator’s estate

e) Bhupinder Dhaliwal would inherit 10% of the testator’s estate [ 5 ] After Bhagwan Dhaliwal’s death and 10 days before her own death, Gurcharn Dhaliwal executed a codicil to her Will. By it she appointed her son Teerth Dhaliwal and her daughter Bhupinder Dhaliwal as executors and in all other respects confirmed her Will of September 7, 1979. [ 6 ] Gurcharn Dhaliwal survived Bhagwan Dhaliwal by more than 30 days. Therefore, under the terms of Bhagwan Dhaliwal’s Will, the primary distribution scheme would apply.

Bhagwan Dhaliwal did not survive Gurcharn Dhaliwal so by the terms of Gurcharn Dhaliwal’s Will, the secondary distribution scheme would apply. [ 7 ] Bhagwan Dhaliwal appointed his two brothers or the survivor of them as executors of his Will. They have both signed renunciations. [ 8 ] On July 17, 2004 Teerth Dhaliwal filed an Application for Letters of Administration with Will Annexed in the Estate of Bhagwan Dhaliwal, and an Application for Probate in the Estate of Gurcharn Dhaliwal. The net value of the Estate of Bhagwan Dhaliwal was shown as $382,448.31.

The net value of the Estate of Gurcharn Dhaliwal, which includes 50% of the Estate of Bhagwan Dhaliwal, was shown as $437,271.82. The total value of the two Estates according to the applications was therefore $628,495.98. [ 9 ] The Application for Administration with Will Annexed was rejected by the Surrogate Clerk because it did not include renunciations of their right to apply by any of the Respondents. The Respondents declined to renounce. The Application for Probate was rejected because it did not include a renunciation by Bhupinder Dhaliwal, the other executor named in the codicil, of her right to apply.

[ 10 ] The Respondents took the following positions in opposition to Teerth Dhaliwal’s applications:

a) Bhagwan Dhaliwal had written another Will subsequent to the Will in respect of which Teerth Dhaliwal sought administration.

b) After Bhagwan Dhaliwal’s death, the four children had agreed that despite the terms of their father’s Will, his entire Estate would be given to his widow and their mother, Gurcharn Dhaliwal.

c) The inventory of the Estates contained in the applications was not accurate. It excluded valuable jewellery and one ounce gold bars which the Respondents believed had been improperly taken by Teerth Dhaliwal. It also failed to recognize a debt owed by Gurcharn Dhaliwal to her daughter Bhupinder.

d) Gurcharn Dhaliwal’s Will and codicil were invalid because she did not understand English and did not understand what she was signing when she signed both the Will and the codicil.

e) Before Gurcharn Dhaliwal’s death she directed that despite the terms of her Will, her Estate would be divided among her four children equally after payment of Gurmeet Dhaliwal’s wedding dowry and repayment of loans owed to Bhupinder and Amrit Dhaliwal by Gurcharn Dhaliwal, and that Teerth Dhaliwal agreed to abide by this direction. [ 11 ] All of the parties have filed affidavits setting out their evidence on the issues which have arisen in this dispute. They have all been cross-examined on their affidavits. The evidence of the two sides conflicts starkly in many important aspects.

There is also affidavit evidence from the lawyer who prepared the Wills and attended on their execution and the lawyer who prepared the codicil and attended on its execution. Estate of Bhagwan Dhaliwal - Application for Administration with Will Annexed [ 12 ] The Respondents initially took the position that the Will in respect of which Teerth Dhaliwal has applied was not the last Will of Bhagwan Dhaliwal – that a subsequent Will existed. They have neither offered evidence to support that position nor, indeed, continued to advance that position in this application.

I am satisfied that the Will which Bhagwan Dhaliwal signed on September 7, 1979 and in respect of which Teerth Dhaliwal seeks Letters of Administration with Will Annexed, is in fact the last Will and Testament of Bhagwan Dhaliwal. [ 13 ] There is no suggestion on the part of the Respondents that the September 7, 1979 Will of Bhagwan Dhaliwal is invalid. [ 14 ] Teerth Dhaliwal is the only applicant for administration of the Estate of Bhagwan Dhaliwal.

As noted, the Respondents take the position that there was an oral agreement among the children of Bhagwan Dhaliwal, entered after the death of Bhagwan Dhaliwal, that despite the terms of his Will, the entire Estate would be transferred to his widow, Gurcharn Dhaliwal, to ensure her support. None of the Respondents therefore is in a position to swear that they will faithfully administer the terms of Bhagwan Dhaliwal’s Will.

Teerth Dhaliwal denies the existence of the agreement and has sworn that he will faithfully administer the Estate as required by the Will according to law. [ 15 ] In my view if the alleged agreement exists it presents no impediment to Teerth Dhaliwal’s application. Such an agreement, if it exists, could not give the parties to it authority to administer Bhagwan Dhaliwal’s Estate. It would not render Bhagwan Dhaliwal intestate.

At most, it would have bound those who entered it to assign their interests in the Estate to their mother, or perhaps to have consented to an order under the Dependants Relief Act in favour of their mother. The Estate itself could not have been a party to the agreement since there was no personal representative appointed at the time the agreement was allegedly entered. [ 16 ] A personal representative must be appointed for the Estate of Bhagwan Dhaliwal in order for the Estate to be administered.

More than ten years after the death of Bhagwan Dhaliwal only one of the four persons who have equal right to apply to be the personal representative of the Estate, Teerth Dhaliwal, has applied.

[ 17 ] The Respondents do not have confidence that he will administer the Estate properly. They allege that he has converted Estate property to his own use. The affidavit evidence is irreconcilable on this subject. For every sworn allegation there is a sworn refutation. Documentation tending to support the refutations has been provided. The Respondents say it is incomplete.

In my view the existence of this unresolved dispute, on which the Respondents have initiated no proceedings to date, does not justify the conclusion that Teerth Dhaliwal is unfit to receive the grant for which he alone applies. [ 18 ] Neither in my view does Teerth Dhaliwal’s denial of the existence of the agreement justify the conclusion that Teerth Dhaliwal should not be granted the order he seeks. If the agreement ever existed it was for the purpose of securing Gurcharn Dhaliwal’s support. Gurcharn Dhaliwal died before the agreement, if it ever existed, could be carried out.

The agreement was frustrated by Gurcharn Dhaliwal’s death. [ 19 ] The enforceability of the agreement is also extremely doubtful given that there does not appear to have been any consideration to support the promises alleged to have been made in it. [ 20 ] Further, it is now more than eight years since the agreement was entered, if it was entered. Any action to enforce the agreement would be statute barred. I reject the Respondents’ submission that the limitation period could not have been running since there was no personal representative for them to sue.

The agreement they allege was among the children of Bhagwan Dhaliwal.

They do not allege that his Estate was a party to the agreement as indeed it could not be. [ 21 ] Exercising the jurisdiction granted by the Administration of Estates Act, s. 23(1) I grant Teerth Dhaliwal Letters of Administration of the Estate of Bhagwan Dhaliwal with Will Annexed. [ 22 ] The application of the Respondents (which they made in pleadings and briefs filed for the purposes of this application) to be named personal representatives of the Estate is dismissed given that Bhagwan Dhaliwal did not die intestate. [ 23 ] Further, for the reasons set out above I am satisfied that as personal representative of the Estate of Bhagwan Dhaliwal, Teerth Dhaliwal is not bound by any agreement that the Estate of Bhagwan Dhaliwal would pass to Gurcharn Dhaliwal if such agreement ever existed.

The Estate of Bhagwan Dhaliwal is to be administered in accordance with the terms of the Will. Estate of Gurcharn Dhaliwal, application for Probate [ 24 ] Only Teerth Dhaliwal has applied for probate of the Will and codicil of Gurcharn Dhaliwal. Bhupinder Dhaliwal, named co- executor in the Will, has not applied. Indeed, she and the other two Respondents take the position that the Will and codicil are invalid because they allege Gurcharn Dhaliwal did not understand the contents of those documents when she signed them.

Though she has not formally renounced her appointment, the position Bhupinder Dhaliwal takes is the equivalent of a renunciation. The absence of a formal renunciation from Bhupinder Dhaliwal does not constitute an impediment to Teerth Dhaliwal’s application if it should otherwise be granted. [ 25 ] As noted, the Respondents allege that Gurcharn Dhaliwal imposed a secret trust on Teerth Dhaliwal.

The alleged secret trust required that Gurcharn Dhaliwal’s Estate be used as follows: - to pay a dowry of $100,000 and 25 one ounce gold bars for one of the Respondents, Gurmeet Dhaliwal, - to pay a debt of approximately $20,000 owed by Gurcharn Dhaliwal to Bhupinder Dhaliwal, and - the remainder to be divided in equal shares among the four children.

[ 26 ] The only evidence of the existence of this “secret trust” is in the affidavits of the three Respondents. Each of the Respondents swore affidavits in 2004 and 2010 relating to this subject. There are inconsistencies between their original affidavits and the affidavits they swore six years later. There is no evidence from anyone else except the three Respondents who, of course, are the chief beneficiaries of the alleged “secret trust”. [ 27 ] The Alberta Evidence Act , s. 11 provides: 11.

In an action by or against the heirs, next of kin, executors, administrators or assigns of a deceased person, an opposed or interested party shall not obtain a verdict, judgment or decision on that party’s own evidence in respect of any matter occurring before the death of the deceased person, unless the evidence is corroborated by other material evidence. [ 28 ] The Respondents point to no evidence outside their own affidavits as corroborating their evidence concerning the secret trust.

In my view the evidence of one sister who would benefit from the existence of the trust does not appreciably help me to believe the evidence of either of the other sisters. The required corroboration has not been provided. [ 29 ] The claim that a secret trust exists is dismissed. [ 30 ] There remains the question of whether Gurcharn Dhaliwal’s Will and codicil are valid. There is no suggestion that the Will and codicil were not executed in accordance with the requisite statutory formalities. Neither is there any suggestion that Gurcharn Dhaliwal lacked testamentary capacity when she executed the Will or codicil.

The only issue is whether she knew and approved the contents of the Will and codicil. [ 31 ] The Respondents take the position that she did not. They say she was not able to understand English sufficiently well to read the documents she signed. They say further that the evidence does not establish that the contents of the Will and codicil were explained to her in the language she did understand. They offer their own evidence to the effect that upon learning of the contents of her Will after her husband died she was shocked.

They say that when she signed the codicil it was not explained to her that she was confirming the original Will in all respects other than the appointment of executors which was the only change made in the codicil. They argue that evidence of the lawyers as presented in their affidavits and cross-examination is not unequivocal. Teerth Dhaliwal provides competing evidence and argument. [ 32 ] The evidence is sufficient to demonstrate that there is a legitimate question as to whether or not Gurcharn Dhaliwal knew and approved the contents of the Will and codicil she signed.

Proof of the Will in solemn form is required. Under the Surrogate Rules, proof in solemn form is called “formal proof of a will”. Rule 83(1) provides: The hearing in an application for formal proof of a will under this Division must be in the form of a trial before the court and must not be held in chambers, (

a) if several witnesses are necessary in the opinion of the court, or (

b) if the court orders a trial. [ 33 ] In my view the question of whether Gurcharn Dhaliwal knew and approved the contents of her Will and codicil does require the evidence of several witnesses. Further, it requires the assessment of issues of credibility of those witnesses which cannot be done when the evidence is presented in the form of affidavits and transcripts of cross-examinations on them.

[ 34 ] Pursuant to Rule 81(

a) I therefore require that Teerth Dhaliwal formally prove the Will and codicil of Gurcharn Dhaliwal in a trial in open court. The only issue in that trial will be whether Gurcharn Dhaliwal knew and approved the contents of her Will and codicil. [ 35 ] As I am the assigned case management judge, I will hear Teerth Dhaliwal’s application under Rule 83(2) for directions on the procedure to be followed at the trial. Counsel may contact the case management coordinator to arrange for that application.

Also, as I am the assigned case management judge, a different judge will hear the trial. [ 36 ] The issues relating to the alleged conversion of Estate property by Teerth Dhaliwal and as to whether the Estate of Gurcharn Dhaliwal is liable to any of the Respondents for unpaid debts cannot be dealt with in this application. It is first necessary for a personal representative to be appointed for the Estate and that, obviously, will not occur until after disposition is made in the trial. Costs [ 37 ] The issues in relation to the Estate of Bhagwan Dhaliwal have been finally disposed of in this decision.

Counsel may speak to costs if they are unable to agree. [ 38 ] Issues in relation to the Estate of Gurcharn Dhaliwal have not been finally disposed of in this decision. I leave costs in relation to the application in that Estate to be determined by the trial judge. Heard on the 13 th day of January 2011. Dated at the City of Edmonton, Alberta this 21 st day of April 2011. Brian R. Burrows J.C.Q.B.A. Appearances: Shelley L. Miller, Q.C. for the Applicant Jacklynn L. Pivovar for the Respondents