Soule v. Johansen Estate, 2011 ABQB 403

Court of Queen ’ s Bench of Alberta Citation: Soule v. Johansen Estate, 2011 ABQB 403 Date: 20110627 Docket: 0901 13241 Registry: Calgary Between: Kim Soule Plaintiff - and - P. David Arnold, Harley C. Earl, Executors of the Estate of Elsie Carrolle Johansen, and the Estate of Elsie Carrolle Johansen and the Calgary Humane Society Defendants _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice S.L. Martin _______________________________________________________ 1. Introduction [ 1 ] In her will Mrs.

Johansen left all her estate to a charity that protects animals. She chose to disinherit her only son, who is now 51 years old and suffers from hepatitis C. He asks to set aside his mother’s will, seeking testamentary relief on the basis that he is unable to earn a livelihood and that the Court should use the powers given by the legislature to make adequate provision for his proper maintenance and support. [ 2 ] This matter was heard as a

summary trial on the basis of affidavit evidence and an Agreed Book of Exhibits. The plaintiff provided an affidavit and was questioned upon it. There was also an affidavit and the questioning of Mr. Arnold, the lawyer who took instructions from Mrs. Johansen and drafted the will. A report from Dr. Richard A. Sagorin concerning Mr. Soule’s health was dated August 5, 2009 and appended as an exhibit to Mr. Soule’s affidavit. A Functional Capacity Evaluation of Mr. Soule dated July 8, 2010 and prepared by Andrew Hosking was also appended as an exhibit to Mr. Soule’s affidavit.

2. Facts [ 3 ] Mrs. Johansen gave birth to Mr. Soule on August 1, 1960. Mr. Soule never knew his father and reports that he has a half- sister, Elaine, but has had no contact with her for many years and does not know her current whereabouts. [ 4 ] When he was young Mrs. Johansen worked at the racetrack looking after thoroughbred horses. This involved moving the horses from Calgary to Edmonton and then down to Arizona for the winter. Mr. Soule lived with his mother for the first few years of his life, then when more stability was required, he lived his grandmother in Saskatchewan until he was about 10 years old.

At that point, his mother married Ronald Johansen, who had two children from a previous marriage, Kirk Johansen and Philip Johansen. Together the Johansens had a daughter and it appears she is Elaine. Mr. Soule returned to Alberta and lived with his mother and Mr. Johansen. His mother and stepfather had a farm south of Calgary and owned and raced thoroughbred horses at Stampede Park. Mr. Soule helped out with the horses and the chores on the farm. Kirk and Philip Johansen lived with their mother during the school year but stayed on the farm in the summer. [ 5 ] Mr.

Soule states that his mother worked full time during her life as a horse trainer and that they lived an average middle- class lifestyle, saying: “not a lot of luxuries but there was enough money to be comfortable.” [ 6 ] When Mr. Johansen died on April 6, 2007 he left the farm to Kirk and Philip Johansen. Mrs. Johansen exercised her dower rights and continued to live at the farm until her death, which occurred on December 6, 2008. Mr. Soule received nothing from the estate of Mr. Johansen. [ 7 ] In terms of background, Mr. Soule left school in grade 10 and began to live on his own.

He held a succession of various jobs. He worked at the racetrack, selling cars, and then in the oilfield, first as a roughneck, then a motorman on a drilling rig. Mr. Soule states that after he left home, he talked on the telephone with his mother approximately once a month and visited once or twice a year depending on where he was working and his finances. He describes them as having a “good relationship”. [ 8 ] During his time in the oil patch he became a drug user. He used marijuana, intravenous drugs, and cocaine, approximately four or five times during the two-week period he was not working.

He admitted to the use of crystal meth until December 2007 or April 2008. In cross-examination he gave his view that the definition of a drug addict may vary between people. He stated that he did drugs but has not been doing drugs for the last 40 years every day and does not see himself as an addict. He credits that his mother may have had a different view, thinking in essence that if you did drugs or smoked a joint, you were a drug addict. He has not attended any type of formal rehabilitation program, except for a one-day outpatient course directed to substance abuse issues.

He says he has not done any form of drugs for approximately 3½ years, since the birth of his son. [ 9 ] Mr. Soule contracted hepatitis C around 1990. He states that he does not know how he contracted this disease: acknowledging that, “it may have been from unprotected sex or from doing drugs.” In cross-examination he admitted to having had multiple sexual partners. [ 10 ] Mr. Soule states that the hepatitis C causes him to have low-energy levels, difficulties remembering, stiff joints, and frequent migraine headaches, for which he takes medication.

He also says he suffers from depression, although he has received no such formal diagnosis. [ 11 ] Around 1997 Mr. Soule left the oil patch as he found the work too physically demanding and he could not pull his weight on the jobsite. He has not worked full time since 2000 and has not worked at all since 2005, citing his health as the reason why he scaled down and then stopped working altogether. He currently lives in British Columbia and has been receiving social assistance from the British Columbia Ministry of Housing and Development.

His affidavit evidence was that when he resides with his common-law wife he receives $996.22 per month, and during periods when they separate he receives $707. On cross-examination this information was updated. He is currently living with his common law spouse, the total allowance is $1006.22 and of that amount $720 is rent, $20 is paid towards a damage deposit, leaving $266.22 per month for all remaining expenses. He receives coverage for prescriptions, dental coverage and glasses.

He says that he is in the process of making a disability based claim to the relevant British Columbia Ministry, but currently he receives only social assistance.

[ 12 ] His current monthly expenses therefore require his full monthly income. He noted in cross-examination, “it is not enough to live on”. He has no assets other than personal effects and a T.V. he found in the garbage. An old truck given to him by his mother was impounded for failure of proper registration. His driver’s license was taken away in 1995 or 1996 in Alberta for impaired driving. Should he seek a British Columbia driver’s license he must pay approximately $7000 in unpaid moving violations.

He said that he cannot afford to pay for Skytrain tickets and this is the amount of violations and penalties that have accumulated and remain outstanding. He has certain other additional debt. He states that he would like to own a car, live the lifestyle he did as a child, and go out to restaurants occasionally. [ 13 ] Mr. Soule’s common-law spouse, who is also the mother of his three-year-old son, is said to be unemployable. For reasons that were not in evidence, the child does not live with them. 3. Mrs. Johansen’s Will [ 14 ] The terms of Mrs. Johansen’s will are concise and clear.

The will was signed on November 6, 2007, was duly witnessed, and contains three clauses. The first revokes all previous wills; the second directs payment of debts; and the third appoints Mr. P. David Arnold and Mr. Harley C. Earl as executors and provides: “I give, devise and bequeath all my property, of every nature and kind and wheresoever situate, including any property over which I may have any power of appointment to the Society Prevention of Cruelty to Animals in Calgary, Alberta.” [ 15 ] The net value of Mrs. Johansen’s estate is approximately $116,000. [ 16 ] The evidence of Mr.

Arnold, the lawyer who drew the will, is that in 2007 Mrs. Johansen knowingly chose to disinherit her son. Mr. Arnold has been practising law in High River since 1974. He had dealings with Mrs. Johansen arising from the death of her husband. In late 2007 Mrs. Johansen contacted him to draft her will. This was the first will Mr. Arnold drafted for Mrs. Johansen. She had an appointment and came to his office. Mr. Arnold could not say whether the will was executed that day or at another subsequent time. Mr. Arnold did not make any notes of her instructions and believed their meeting took less than half an hour.

He had no concerns over her capacity. He did not review her assets and liabilities with her, explaining that he knew her financial situation from previous dealings concerning her husband’s estate. He did not discuss whether she had any other children but recalls that she had a son and that at the time of Mr. Johansen’s death she did not know how to contact him. Mr. Arnold recalled that Mrs. Johansen said she did not want to leave her estate to Kim Soule because it would all go to drugs and booze. She instructed Mr.

Arnold that she wanted to leave her entire estate to the Calgary Humane Society as she had worked with and cared for animals her entire life and wanted her estate go to a worthy cause. At their meeting there was no discussion about her son’s financial situation, health, whether or not he could work, or the terms of the Dependants Relief Act , R.S.A. 2000, c.D-10.5. [ 17 ] Mr. Soule testified that he had never spoken to his mother about her will. He simply assumed that as her only son he would receive something from the estate.

Their last visit occurred in April 2008, after she had made the will at issue and about 10 months before her death. He gave evidence that when they were together he discussed his health and hepatitis and how he had stopped using drugs. His mother was aware of his illness and disability and that he was living on income support. They spoke about him moving back to Calgary to provide her with help as her health was beginning to fail, but she said she didn’t think it was necessary. Mr.

Soule states that he could not afford to visit her again in Calgary after April 2008 but says they spoke on the phone approximately once per month until she died. Mrs. Johansen did not change her will after this meeting or any time before her death. 4. Testamentary Autonomy and Alberta’s Dependants Relief Act [ 18 ] The common-law recognizes the testator’s right to choose how to dispose of his or her property. Under common law principles, the clear and express wishes of Mrs.

Johansen would be respected and the named charity would become her sole beneficiary. [ 19 ] However, the legislature changed the common law when it enacted the Dependants Relief Act R.S.A. 2000, c.D-10.5 . This Act seeks to balance testamentary autonomy with the legal and moral obligations owed to dependent individuals in need. While the scope and wording of such legislation varies, similar legislation exists across the country.

In Alberta, when the requirements of the Act are met, courts are given the discretion to override the wishes of testators when, and to the extent, they fail to make adequate provision for their dependents.

[20] The Supreme Court turned its attention to the competing interests at stake in Tataryn v. Tataryn, (SCC),[1994] 2 S.C.R. 807. This case involved the British Columbia Wills Variation Act, R.S.B.C. 1979, c. 435. Under s. 21 of that Act, atestator had a duty to make adequate provision for the proper maintenance and support of a surviving spouse and children.

If the testatorfailed to discharge this duty, the Court may order provision from the estate of that which is “adequate, just and equitable”. [21] The Court recognized that the type of legislation at issue confers a broad discretion on the court and must be read in light ofmodern values and expectations. The search is for contemporary justice. The Court noted that two interests protected by the Act areapparent. The main aim of the Act is the adequate, just and equitable provision for the testator’s spouse and children.

The other interest,testamentary autonomy, remained but was limited to the extent that testamentary intention must yield, but only to the extent necessary, toprovide such person with what was “adequate, just and equitable in the circumstances”.

Once the court has determined what is“adequate, just and equitable in the circumstances” as evaluated under contemporary standards, “it cannot be cut down on the groundthat the testator did not want to provide what is adequate, just and equitable”. (Tataryn at 816) The Court said this was not limited strictlyto a needs test but required a consideration of legal and moral obligations. The Supreme Court of Canada acknowledged that one rationaleof the British Columbia legislation was to prevent persons from becoming a charge on the state.

In the result, the Court changed theprovision for the testator’s wife and one son even though the testator explained in his will why he purposively excluded his son Johnfrom any share of the estate. [22] The Tataryn decision provides useful guidance on the goals underpinning this type of legislation, the importance ofcontemporary standards, and the need to consider both legal and moral obligations in assessing what is “adequate, just and equitable”.However, the Alberta legislation differs in certain significant respects from the British Columbia legislation considered in Tataryn.

TheAlberta legislation appears to give more structure to the court’s discretion and to place greater emphasis on the needs of the claimant.Indeed the very title of the Alberta Act speaks of “dependency”, unlike the broader reference to variation of wills in the British Columbiastatute.

The Alberta Act restricts the right of an adult child to make a claim on the estate by requiring proof that the claimant is “unableby reason of mental or physical disability to earn a livelihood”. [23] Once that threshold requirement is met and a person qualifies as a “dependant”, the court must consider the terms of the willand the circumstances of the dependant claimant.

Under s.3(1) the court’s discretion to grant relief only arises when the testator has notmade “adequate provision for the proper maintenance and support of the person’s dependants.” On such a finding, notwithstanding thewill, the judge may order “any provision that the judge considers adequate be made out of the estate of the deceased for the propermaintenance and support of the dependant”.

Alberta’s use of words and limiting concepts such as “dependants”, adequate provision, andproper maintenance and support suggest a more focussed review: one that gives priority to the adequacy of the provision from thestandpoint of the dependant’s needs and maintenance. [24] Mr. Soule seeks testamentary relief solely under the Dependants Relief Act and there is no issue concerning the testator’scapacity. 5. Issues [25] Based on the terms and requirements of the Act three issues arise: i. Is Mr. Soule a “dependant”? ii. If yes, did Mrs. Johansen make adequate provision for his maintenance and support? iii.

Should the court exercise its discretion under s. 3 (1) of the Act? 6. Position of the Parties [26] Mr. Soule claims he is a dependent adult who is, by reason of a physical disability associated with hepatitis C, unable to earna livelihood, that his mother has failed to make adequate provision for his maintenance and support, and that his life circumstances aresuch that he should receive all her estate.

[ 27 ] The Calgary Humane Society argues that Mr. Soule does not meet the terms of the statute, that he is disqualified from relief by his character and conduct, and that Mrs. Johansen’s choice of beneficiary should be respected. 7. Analysis i. Is Mr. Soule a “Dependant” [ 28 ] The Act expressly defines a “dependent” in s. 1(

d) to include: “a child of the deceased who is 18 years of age or over at the time of the deceased’s death and unable by reason of mental or physical disability to earn a livelihood.” [ 29 ] To qualify as a dependant the burden is on Mr. Soule to prove two things: first, that he suffers from a mental or physical disability and second, that because of that disability he is unable to earn a livelihood. [ 30 ] There is no requirement that a claimant under the Act has received, or even sought, support from the testator during the testator’s life.

It was conceded by all counsel, and has been recognized in case law that the Act creates a separate and distinct legal obligation towards dependant adult children that arises only upon the death of the testator. As such, it is different from any similar obligations which living parents may owe to their children. Different considerations arise after the testator no longer requires funds for his or her own maintenance. Thus the fact that Mr. Soule never sought support from his mother when she was alive is not a relevant consideration when assessing if he is a dependant under this Act : Petrowski v.

Petrowski Estate , 2009 ABQB 196 , 466 A.R. 59 at para 481 . [ 31 ] The medical evidence of disability includes a one page report dated August 5, 2009 from Dr. Richard A Sagorin. It is written in point form and states:

A) The diagnosis are - Hepatitis C, - Hepatitis B, - Previous drug addiction. He is apparently “clean”- for one year

B) He is unable to exert himself physically, or to concentrate for any length of time

C) In my opinion, he is permanently disabled

D) I expect no change in his condition. [ 32 ] Mr. Soule explained that he was told by his physician that his condition would not get better, not that it could not change for the worse. Cross-examination revealed that the doctor relied upon what Mr. Soule reported about his drug use and that no urine sample or other form of drug testing was conducted. [ 33 ] In the Functional Capacity Evaluation, Mr. Andrew Hosking concluded that Mr. Soule applied himself to the evaluation and that Mr. Soule’s self-reports of function and pain are consistent with objective observations of function. Mr.

Hosking considered the results of the examination to be reliable, despite noting a mild level of pain behaviour and observing that Mr. Soule asked to stop activity without evidence of maximal physiological effort or biomechanical compromise. Mr. Hosking deferred to Mr. Soule’s physician for nonmechanical aspects of Mr. Soule’s future work capacity based on the course of his hepatitis condition. Mr. Hosking concluded that Mr. Soule is physically capable of at least part-time sedentary work but notes that the prospect of retraining for this work appears to be poor due to Mr.

Soule’s low level of education and high level of fatigue. The primary limiting factors preventing Mr. Soule’s return to work as a motorman on a drilling rig include general deconditioning, lack of lower limb strength and limited capacity for sustained reaching at or above shoulder level. [ 34 ] Mr. Soule said he has not sought part-time work in the last five years, claiming that his health prevents him from doing so. Under the social assistance program he receives from British Columbia, Mr. Soule could earn $500 of income without having an impact on the level of benefits received.

[35] Case law suggests that “livelihood” must be taken to mean “adequate for the proper maintenance and support”. In effect, anychild over the age of 18 who is unable to “earn a livelihood” is also a person who exists without “proper maintenance and support”. SeeA.B. Moen J. in Petrowski. At para. 500 A.B. Moen J. summarizes the case law in the following way:

a) an adult child who receives government assistance or is institutionalized is able to claim testamentary relief, and thus cannot beable to earn a livelihood: Bidlock Estate (Public Trustee of) v. Vos, E.A.H. (Dependent Adult) (Re), 2005 ABQB 678, 386 A.R. 187,Stone Estate (Public Trustee of) v. Stone Estate (1994), (AB KB), 154 A.R. 307, 20 Alta. L.R. (3d) 31 (Alta Q.B.),substantially affirmed 1997 ABCA 380 , 209 A.R. 138, 54 Alta. L.R. (3d) 225 (Alta. C.A.);

b) a person who is not “capable of self-sufficiency” may claim testamentary relief, and thus cannot be able to earn a livelihood: Boje v. Boje Estate; Boje Estate, Re, 2005 ABCA 73 at para. 17, 250 D.L.R. (4th) 271; and

c) a child is not a dependant where any inability to earn a livelihood is a consequence of the personal choices and/or laziness of thechild: RE Bowers Estate, (AB KB), [1955] A.J. No. 33 (QL), 19 W.W.R. 241 (Alta. S.C.). [36] The Humane Society argues that Mr. Soule does not suffer from a “disability” as any ailments claimed are a product oflifestyle choices he made. While the Act allows evidence of a claimant’s behaviour, conduct or character under s. 3(5) and to some extentunder s. 3(2), the definition of dependant speaks only to the presence or absence of a disability; it does not refer to its origin or cause.

Inmy view, it is not open to the Court at this stage of the inquiry to ask about the claimant’s role in causing or contributing to any disabilitythat may exist. The focus is on whether or not a disability has been established on the preponderance of the evidence. The question iswhether a particular physical or mental condition amounts to a disability and not how it came about.

Thus, based on the definition ofdependant, attention would be on whether a person’s emphysema qualified as a disability and not on whether or not that person smoked.Similarly, the question of whether the brain injury from the cycling accident resulted in a mental disability would not turn on whetherthe rider was wearing a helmet. [37] While it was agreed that the reports of Dr. Sagorin and Mr. Hosking would form part of the Book of Agreed Exhibits, theywere attached as exhibits to Mr. Soule’s affidavit.

The Humane Society argues such reports should be given little weight, that Mr.Soule’s physician does not say he cannot work and that Mr. Soule can work part-time. [38] I accept that there are gaps and limits in the evidence presented to support the claim that Mr. Soule qualifies as a dependant.Mr. Soule refers to Dr. Sagorin as his family physician, but there is no specific information about his credentials and qualifications, howlong he has been Mr. Soule’s family physician, the frequency of treatment or Dr. Sagorin’s opportunity to make observations about Mr.Soule’s condition. The only comment comes from Mr.

Soule’s cross-examination where he says that he had been going to see Dr.Sagorin on a regular basis. The physician’s opinion does not address Mr. Soule’s ability to work: individuals with permanent disabilitiesmay nevertheless remain able to gain a livelihood. Nor does the functional evaluation directly tie the workplace restrictions to thedisability noted by the physician. Further, as is common in medical reports, the physician relied upon information provided by thepatient, and no testing was done to confirm Mr. Soule’s statement that he was no longer taking drugs.

However, all such evidence wasuncontradicted and was not the subject of cross-examination. Despite the limits discussed, the inference from the whole of theuncontradicted evidence supports a finding that Mr. Soule has a disability. [39] The Humane Society also argues that Mr. Soule has chosen not to work. However, the fact that a person may be capable ofpart-time sedentary work does not mean he is necessarily in a position to “earn a livelihood”. The Functional Capacity Evaluation doesnot state how many hours per week Mr. Soule could work and also notes the poor prospects for retraining. Mr.

Soule earned a livelihoodfor many years, after 2000 he worked part-time and after 2005 he no longer worked. He has not sought employment. While thisemployment pattern may support an inference of a lack of personal motivation, I find it is more likely corroborative of deterioratinghealth and inabilities associated with his hepatitis C and the “permanent disability” his physician says he is suffering from. [40] In the result I find that Mr. Soule is a dependant unable under the Act. ii. Did Mrs. Johansen make adequate provision for his maintenance and support?

[41] The judge on the hearing of the application may inquire into and consider all matters that the judge considers should be fairlytaken into account in deciding the application. Under s. 3(2)(

c) a judge may also accept any evidence that the judge considers proper ofthe deceased’s reasons, so far as ascertainable, for making the dispositions made by the deceased’s will, or for not making adequateprovision for a dependant. [42] Mrs. Johansen made no provision in her will for her dependant son. Whether this is “adequate for the proper maintenance andsupport” is an individual matter, tested by a variety of variables: Tataryn, at 817. It includes consideration of previous lifestyle andhistory, and any ongoing requirements that may undergo future changes. In addressing this requirement, courts have taken into account:

i) the age and health of the dependant; ii) the needs of the dependant; iii) likelihood of the needs of the dependant increasing; iv) station of life of the deceased and the dependant;

v) mode of life to which the dependant ought to be accustomed; vi) other sources of income of the dependant; vii) cost of living; and viii) future contingencies that are reasonably foreseeable. [43] In the case at bar, Mr. Soule is 51 years old, suffers from hepatitis C and lives hand to mouth in rental accommodation onsocial assistance. He has no assets and says what he receives is not sufficient to live on. His medical condition will not improve and willlikely deteriorate with age. It is unclear what provisions govern the receipt of his current benefits and how they may change.

There isalso case law stating that the adequacy of the provision, “should be done without consideration of whatever government help may ormay not be available from time to time.” See Stone Estate at para. 21, and E.A.H. Unlike when he was a child, there is often no food inhis home. In light of these undisputed facts I find that Mrs. Johansen’s will has made no proper maintenance or support for her son. iii. Should the Court exercise its discretion in favour of Mr Soule? [44] In assessing whether the Court should exercise its discretion in favour of Mr.

Soule, the following factors are relevant: 1. the overall size of the estate; 2. the income and resources of the various competing potential recipients; 3. the present and future requirements of the persons asserting a right to the estate, as dependant on age, health, lifestyle, that arerequired to meet an adequate standard of support and maintenance; 4. the legitimate expectations and lifestyles of the competing potential recipients; 5. the moral obligation that society places on a person to maintain and support persons in certain relationships and circumstances;and 6. other facts that may negate a right to receive a part of the estate.

See Petrowski at para 594; Carter v. Alberta Conference Corp. of the Seventh Day Adventists, [1998] A.J. No. 1479 at para. 28 (QL), anumber of factors previously identified in Pauliuk v. Pauliuk Estate, (1986), (AB KB), 73 A.R. 314, 48 Alta. L.R.(2d) 25 (Alta. Q.B.) and Dupere (Next Friend of) v. Spinelli Estate, (1998), 1998 ABQB 966 , 229 A.R. 137, A.C.W.S. (3d) 610at para. 28 (Alta. Surr. Ct.) [45] In the case at bar the Court is not asked to balance competing obligations between multiple possible claimants. The choice isbetween her son and a charity.

Cases cited involving wills involving different bequests to various diffentially situated family members or

beneficiaries were instructive but not directly applicable. See Stone Estate ; B.G.B. Estate (Public Trustee of) v. S.V. , 2003 ABQB 683 ; E.A.H. (Dependant Adult) , where the beneficiaries agreed to relief and Kinsella (Estate of), 2004 ABQB 664 . [ 46 ] The case law indicates that a court should consider and rank the presence and extent of both her legal and moral obligations to each. See Tataryn at 823 ; Petrowski at para. 451 ; Re B.G.B. (Estate of) , 2003 ABQB 683 ; and Ponich Estate (Re) , 2011 ABQB 33 at para. 24 . [ 47 ] Mrs.

Johansen owed both legal and moral obligations to her son during her lifetime and at her death and owed neither to her chosen beneficiary. Community standards support the recognition of support obligations of parents towards their children. The Dependants Relief Act gives specific statutory force to the moral obligation to support an adult child disabled from earning a livelihood. In seeking contemporary justice most would say that a parent’s estate should not benefit a charity when that person’s child is permanently disabled and lives on government assistance.

In Petrowski Moen J. said at para. 521 : Uniformly, Alberta courts appear to conclude that the assistance offered by the state to disabled persons does not discharge a parent's obligation to provide support in a will ... [ 48 ] The relationship between mother and son after Mr. Soule left home does not appear to have been either strained or especially close.

There were the complicating factors of distance, cost of travel and especially in later years, limited finances, but contact was generally maintained over the years. [ 49 ] The Act expressly states that the Court may consider the testator’s motivation as a relevant factor in the exercise of discretion. Mrs. Johansen stated in 2007 that she did not want her estate to be used for drinking and drugs. The Act speaks of making proper maintenance and support and she expressed her fear that any funds would be used to fuel any substance abuse problems he had.

In short, even if she may have wanted to support her son, she did not want to support what she thought was his drug habit. [ 50 ] In assessing the weight to be given to such a statement the judge is, under s. 3(3), to consider all the circumstances from which any inference can reasonably be drawn as to the accuracy or otherwise of the statement.

At the time she made her will, her obligations under the Act and any options she may have had to structure support to her son were not discussed, with the result that the Court has no information about what her instructions or thoughts may have been had such matters been canvassed. Nor did she appreciate when making this statement that her son had stopped taking drugs. After she made those comments and signed her will, Mr Soule came to visit. From their meeting in April 2008 she knew that Mr. Soule said he had stopped using drugs, had health issues and was on social assistance.

While she did not change her will with the benefit of this new information, she nevertheless did not have it when she made those statements to Mr. Arnold. [ 51 ] When the disability is related to drug use questions of volition, character and conduct arise. The Human Society argues that Mr. Soule is disqualified under s. 3(5) from relief based on character or conduct. Section 3(5) provides: The judge may refuse to make an order in favour of any dependant whose character or conduct is such as in the opinion of the judge disentitles the dependant to the benefit of an order under this Act. ...

There is little jurisprudence on what type of character or conduct justifies a refusal. [ 52 ] I am persuaded that Mrs. Johansen’s legal and moral obligations weigh more heavily than his behaviour and her reaction to it. Mr. Soule says he has stopped using drugs and has “stopped drinking”, meaning he drinks but in greatly reduced amounts. Even if such were not the case, it is not clear why he should be supported by the public purse when private funds exist. [ 53 ] Counsel for Mr. Soule suggested that given the size of the estate and Mr. Soule’s condition and need, that Mr.

Soule’s proper maintenance and support required that he be given the full estate.

[ 54 ] The Court has the discretion to structure how funds are allocated and distributed. The Humane Society will receive a gift of $10,000 to respect Mrs. Johansen’s wishes in part and to cover the costs of being brought into this process. Mr. Soule will receive the remainder. [ 55 ] If the parties cannot agree on costs they may return before me within thirty days. Heard on the 2 nd day of June, 2011. Dated at the City of Calgary, Alberta this 27 th day of June, 2011. S.L. Martin J.C.Q.B.A. Appearances: James K. Lawson for the Plaintiff Kenneth P. Reh Brian D. West for the Defendant, The Calgary Humane Society Edward D. Simper for the Executors