Cuthbertson Estate, 2011 ABQB 704

Court of Queen’s Bench of Alberta Citation: Cuthbertson Estate, 2011 ABQB 704 Date: 20111116 Docket: ES10 19166 Registry: Red Deer Court File Number ES04 19166 Court Court of Queen’s Bench of Alberta (Surrogate Matter) Judicial District Red Deer Estate Name Goldie Cuthbertson Applicant (Plaintiff) Constance Dick _______________________________________________________ Reasons for Judgment of the Honourable Mr.

Justice Donald Lee _______________________________________________________ [ 1 ] Counsel applies for a Grant of Probate with respect to a handwritten document that essentially reads only as follows:– “I appoint Constance Dick as my executor and trustee to: Connie Dick Dennis Comm Barbara Brunlees Tom Cuthbertson” [ 2 ] On the basis of this handwritten document counsel submits that the Court should give effect to all of these words, and apply the presumption of rationality and presumption against intestacy to allow it to proceed by way of probate. [ 3 ] The NC3 in this matter indicates that there were two other children besides the four surviving children listed on the document who had predeceased the Deceased, but these two other children each have children still surviving.

[ 4 ] Sections 1, 3, and 4 of the Alberta Intestate Succession Act, R.S.A. 2000, c. I-10 reads as follows:–

Definitions 1 In this Act, (a) “estate” includes both real and personal property; (b) “issue” includes all lineal descendants of the ancestor; (c) “net value” means the value of the estate wherever situated, both within and outside Alberta, after payment of the charges on it and the debts, funeral expenses, expenses of administration, estate tax and succession duty. Spouse’s or adult interdependent partner’s share 3(1) When an intestate dies leaving a surviving spouse and issue or leaving a surviving adult interdependent partner and issue, (

a) if the net value of the intestate’s estate does not exceed $40 000, the estate goes to the spouse or adult interdependent partner, as the case may be, and (

b) if the net value of the intestate’s estate exceeds $40 000, the spouse or adult interdependent partner, as the case may be, is entitled to $40 000 and has a charge on the estate for that amount with interest from the date of death.

(2) After payment to the surviving spouse or adult interdependent partner under subsection (1), (

a) if the intestate dies leaving a surviving spouse and one child or leaving a surviving adult interdependent partner and one child, 1/2 of the residue of the intestate’s estate goes to the spouse or adult interdependent partner, as the case may be; (

b) if the intestate dies leaving a surviving spouse and more than one child or leaving a surviving adult interdependent partner and more than one child, 1/3 of the residue goes to the spouse or adult interdependent partner, as the case may be.

(3) If a child of the intestate has died during the lifetime of the intestate leaving issue, one or more of whom are alive at the date of the intestate’s death, the surviving spouse or adult interdependent partner shall take the same share of the intestate’s estate as if the child had been living at that date. Spouse and adult interdependent partner 3.1(1) The following applies where an intestate dies leaving both a surviving spouse and a surviving adult interdependent partner: (

a) if the spouse was living with the intestate at the time of the intestate’s death, the spouse shall receive the spouse’s share of the intestate’s estate and the adult interdependent partner shall take no

part in the estate as an adult interdependent partner;

(

b) if the adult interdependent partner was living with the intestate at the time of the intestate’s death, the adult interdependent partner shall receive the adult interdependent partner’s share of the intestate’s estate and the spouse shall take no

part in the estate as a spouse.

(2) If at the time of the intestate’s death neither the surviving spouse nor the surviving adult interdependent partner was living with the intestate, whichever of them last lived with the intestate shall receive the spouse’s or adult interdependent partner’s share of the intestate’s estate, as the case may be, and the other shall take no

part in the estate as a spouse or adult interdependent partner, as the case may be. Share limited 3.2 A person who is entitled to take a part of the intestate’s estate as an adult interdependent partner is not entitled under this Act to take any further part of the estate in another capacity. Shares of issue 4 If an intestate dies leaving issue, the estate shall be distributed, subject to the rights of the surviving spouse or adult interdependent partner, per stirpes among the issue. [ 5 ] Particularly

section 4 provides that if an intestate dies leaving issue, the estate shall be distributed . . . per stirpes among the issue . [ 6 ] An intestacy in this case then would result in more than the four equal shares provided for in the handwritten piece of paper. [ 7 ] There appears to be no issue with respect to the Deceased’s mental capacity, and an Affidavit of Handwriting for the handwritten Will appears satisfactory. At the time of her death, the Deceased had one major asset consisting of $222,000 bank GIC certificate.

The date of the brief handwritten document was February 17, 2010, and the date of death was April 16, 2011. The Deceased was 94 years of age at the time of her death. Her spouse had predeceased her on July 17, 2000 and there was no current adult interdependent partner at the time of her death. [ 8 ] The six grandchildren of the two predeceased children are all over 18 years of age but were not served with the application.

Only the four children of the Deceased who are currently still alive were served. [ 9 ] Counsel provides me with the following written authority from Oosterhoff on Wills and Succession Sixth Edition , pages 440 - 446:– (iv) Effect to be Given to All Words As a general principle, when interpreting an ambiguous or uncertain clause, the court will strive to give effect to all the words used by the testator, unless to do so would be contrary to the testator’s plainly expressed intentions in other parts of the will.

An example of the application of this rule may be found in Re Stark . 1 6 In that case the testator had made a gift to his “nephews” and the court interpreted that word to include nephews of the half-blood. When he made his will the testator had only one nephew of the whole blood and the circumstances were such that it was unlikely that he would have any further nephews of the whole blood. In coming to this

conclusion, Gale C.J.O., said: 1 7 . . . then the use of the plural in mentioning the nephews can only have been for the purpose of including nephews of both the full and half-blood. (

v) Ejusdem Generis The ejusdem generis rule operates to restrict the meaning of a general word including with words having a particular meaning to a meaning similar to the latter. Thus, for example, in Re Resch’s Will Trusts’s 1 8 a bequest to a young boy of “my watches (other than my calendar watch), chains, studs and other personal jewellery” was held to be restricted to articles of masculine jewellery of small value and did not pass other valuable jewellery which the testator had received under his wife’s will. Lord Wilberforce noted: 1 9 The word “other” . . . suggests an ejusdem generis

interpretation: so do the references to chains and studs appear to indicae thc meaning both of “personal” and of “jewellery”. To suppose that so many other articles of a different character and of so different an order of value are casually and incidentally included under this general phrase seems contrary to the structure of the gift...

In order for the ejusdem generis principle to apply, the particular words must be of such a nature as to form a common class or genus. 2 0 The principle is not invoked if the context supports a broad meaning for the general words and it is normally excluded if its application would lead to an intestacy. 2 1 (vi) General Versus Particular Intention If a testator expresses both a general and a particular intention with respect to a certain gift and the two are inconsistent, or the particular intention cannot be given effect to because of a rule of law, the court will give effect to the paramount general intention by disregarding, modifying or restricting the particular intention. 2 2 Thus, in Re Hopkins 2 3 the testatrix owned a corporation which operated a private school.

By her will she directed that her trustees should carry on the operation until such time as they could turn it over to a charitable educational foundation. In order that the foundation could continue to operate the school, she directed the Trustees to transfer to it the operating assets of the corporation at the time of transfer but continued: . . .provided, however, that the said operating assets . . . shall be deemed not to include cash on hand or in banks or other depositories, term bank deposits or any other investments. Such assets were to he retained by the corporation.

The question arose whether school fees which were paid in advance were “operating assets” or “cash on hand”. The court concluded that the testatrix’s manifest general intention was to enable the foundation, when established, to carry on her work and it would not be able to do so effectively without a transfer to it of the operating assets. Of necessity, those assets included the monies held on account of prepaid school fees. A somewhat more extreme example is afforded by Re Harmer . 2 4 A husband and wife made reciprocal wills and the testatrix survived her husband by several months.

In her will she left her estate to her husband if he survived her and then provided: . . .if my husband and I should both die under circumstances rendering it uncertain which of us survived the other, I declare that my will shall take effect as if my husband has predeceased me.

In that event her property was otherwise disposed of. However, she made no provision for the event which actually happened, that is, that she survived her husband. Normally, this would have meant that she would have died intestate. The court determined that her general intention was to dispose of her entire estate finally and completely. Hence, her particular intention, being incompletely expressed, could be disregarded.

A frequent application of the principle that the particular intention yields to the general if the two are inconsistent arises when the testator first disposes of an apparently absolute gift, followed by a gift over of what remains.

If the two provisions cannot be reconciled, [t]he court has then to give such effect to the wishes of the testator as is legally possible, by ascertaining which part of the testamentary intention predominates and by giving effect to it, rejecting the subordinate intention as being repugnant to the dominant intention. 2 5 It is submitted that in the “what remains” cases the courts are too ready to apply the repugnancy doctrine.

In most of these cases it is quite apparent that what the testator intended to do was to give a life interest to the first beneficiary (often his or her spouse), coupled with a generous power to encroach on the capital, and to leave the remainder to the second beneficiary (usually his or her children). Such a gift would be perfectly valid and, had the testator been properly advised, or had he or she used more felicitous language, his or her intention would readily be given effect to. If, however, the intention is clear, it seems excessively legalistic not to give effect to it.

Some cases have taken a lenient approach to such gifts? 2 6 (vii) Presumption against Intestacy If a will is fairly capable of two

interpretation, one resulting in some or all of the property being incompletely disposed of and the other completely disposing of all of the testator’ s property, it is presumed that the testator intended to dispose of his or her entire estate and did not intend to die intestate in respect of the whole or any part of the estate.

The presumption is especially strong if the testator has purported to dispose of all his or her property. 2 7 . . .when a testator has executed a will in solemn form you must assume that he did not intend to make it a solemn farce—that he did not intend to die intestate when he has gone through the form of making a will. You ought if possible to read the will so as to lead to a testacy, not an intestacy.

This is a golden rule. 2 8 However, if it clearly appears that the testator, in the circumstances which occurred, intended to leave some or all of his or her property undisposed of, or if he or she expressly so provides, an intestacy will ensue.

The court will not give an unnatural or forced meaning to words in order to avoid an intestacy. 2 9 The inclination of Courts to lean against a construction which will result in intestacy is far from being a rule of universal application and is not to be followed if the circumstances of the case and the language of the will are such as to clearly indicate the testator’s intention to leave his property or some part of it undisposed of upon the happening of certain events.

It appears Co me, however, that when an individual has purported to make final disposition of all his “property both real and personal of every nature and kind and wheresoever situate”, he is not to be taken to have intended to leave all that property undisposed of on the happening of certain events unless there are some very exceptional and compelling reasons for so holding. 3 0 Further, if the testator has clearly considered who should receive certain property, but leaves part of it undisposed of, there will be an intestacy of that part. This is illustrated by Huddart Estate v.

Reid . 3 1 The testatrix directed that a fund be established to produce annuities for her daughter and grandsons. She provided that when the last annuitant died the residue should be divided equally among her great-grandchildren, but failed to dispose of the income from the residue in the meantime. The court held that the income passed on an intestacy. Howell v. Howell Estate 3 2 is another example. The testator’s will, left all his estate to his wife if she survived him.

Subject thereto, he directed that articles of domestic and household use be divided among the two sons of the marriage, hut he did not dispose of the rest of the estate. His wife predeceased him. The two sons thought that they were entitled to the rest of the estate, hut a son by a previous

marriage successfully argued that the residue should he distributed as on an intestacy. The court held that the presumption against intestacy could not be used to overcome the fact that he failed to dispose of his estate other than articles of domestic or household use. The court noted that the presumption can only be used if the language of the will is ambiguous. 3 3 The presumption against intestacy is often invoked in the “money” cases, that is, cases in which the testator leaves “all the rest of my money” to a named person.

Unless the word “money” is construed to mean “estate” the testator would usually die partially intestate. 3 4 The courts will often so construe the word to prevent an intestacy. Thus, a residuary clause in a will giving “all the rest and residue of my bank accounts” was construed to dispose of the residue of the estate. 3 5 (viii) Presumption of Rationality A testator is entitled to be capricious in the disposition of his or her property and effect will be given to his or her intention so far as the law allows, if it is clearly expressed.

Nevertheless, it is presumed that the testator did not intend capricious, arbitrary, unjust or irrational consequences to flow from his or her dispositions. 3 6 This presumption is frequently relied on in finding an error or omission which the court is willing to correct. 3 7 (ix) Presumption of Legality The traditional rule is that, in ascertaining the testator’s intention, the will must be read initially without regard to the consequences of any rule of law.

If on such a construction it turns out that a particular gift fails, for example, because of the rule against perpetuities, the court will not attempt to reinterpret the will in order to save the gift. 3 8 However, if the will is ambiguous and one possible

interpretation of the will appears to offend against a rule of law, while another possible construction which the will reasonably bears does not, the testator’s intentions will be presumed to accord with the law. 3 9 (

x) Presumption Against Disinheritance As a general rule, if the words of the will are ambiguous, the court will prefer a construction that will benefit the testator’s heirs or immediate next of kin over one which favours more distant relatives or non-relatives. 4 0 However, if the intention of the testator is clearly expressed, the court will give effect to a provision that operates to disinherit an heir.

Generally speaking, I feel that there is too much tendency on the part of those having potential rights to inherit or moral claims on the bounty of testators, to consider that those rights and claims should not be interfered with.

While it is no doubt proper to guard against persons in such position being unlawfully deprived of their just rights and claims, it is equally important not to take away the prerogative of a person to dispose of his or her property as such person may wish. 4 1 As between next of kin of equal degree it is presumed that an equality of distribution was intended and that the distribution is to be made per capita. 4 2 xi) irreconcilable Dispositions If a will contains dispositions that are irreconcilable, the court will attempt to construe the will in a way that will avoid the inconsistency.

Thus, in a case in which a testator gave his estate to his wife absolutely, but then provided, “However, should my wife be my survivor” the estate should he divided equally among his brothers’ children, the court held that the nephews and nieces were entitled to his estate, despite the apparently absolute gift to the wife. 4 3 The rule cum duo inter se pugnatia reperiuntur in testamento ultimum holds that if two inconsistent clauses appear in (he same will or

codicil 4 4 and it is impossible to reconcile the two clauses, the last one prevails.

The rule is said to be based on the idea that the last clause is the last expression of the testator’s intention and it should, therefore, be given effect to. 4 5 Thus, when a clause in a will gave a legacy of “one hundred pounds (5O0),” it was held that a legacy of £500 was intended. 4 6 However, if the inconsistency arises as a result of separate clauses in the will which give a single property to different beneficiaries, the beneficiaries will take as joint tenants, as tenants in common, or in succession, depending upon the nature of the property. 4 7 If the application of the rule would result in an intestacy, the first gift will be preferred. 4 8 Moreover, the first gift prevai Is if the two gifts form part of the residue.

In this case the two clauses are not regarded as irreconcilable, however.

Rather, J the second is seen as an ultimate gift of residue into which lapsed shares of residue and, if the context permits it, lapsed legacies will fall. 4 9 Finally, it should be stressed that the rule is one of last resort, or a rule of despair 5 0 and the court will, if at all possible, try to reconcile the two clauses. 5 1 Conclusion [ 10 ] While the handwritten document before me is exceedingly short, I conclude that it is arguable the general principle that Effect Should be Given to all Words, the Presumption of Rationality, and the Presumption Against Intestacy supports a finding that the word “to” in this case is intended to have dispository effect.

As it is followed by the listing of the Testatrix’s four surviving children, as there is no intent to the contrary evident, the presumption against intestacy and the principle that effect should be given to all words support the position taken in favour of the four named children. [ 11 ] Further support for this conclusion could be found in a “Revocation of all former wills” prior to this, although I do note the appointment of Constance Dick as the Executor and Trustee by both Goldie Cuthbertson again is followed by a reference in the Will to her as Connie Dick when the four children are name after the disposition clause following the “to”.

The entirety of the Will is appended and marked as Appendix A to these written Reasons. [ 12 ] The application for Probate probably should be corrected to be a request for a Grant of Administration with Will Annexed, but in any event cannot be conclusively determined by this Court to be a testamentary document with the dispositive effect until the six adult grandchildren over 18 years of age are served with notice of this application. I will seize myself of the matter until I receive confirmation from counsel that they have been served, at which point I will advise counsel as to any further steps to be completed.

Heard on the 9 th day of November, 2011. Dated at the City of Edmonton, Alberta this 15 th day of November, 2011. Donald Lee J.C.Q.B.A. Appearances: Robert J. Warrender

Duhamel Manning Feehan Warrender for the Personal Representative Appendix A 16 (ON CA), [1969] 2 O.R. 881, 7 D.l.R. (3d) 313 (C.A.) 17 Ibid., at p. 882 18 [1961] 1 A.C. 514, [1967] 1 All E.R. 915 (P.C.) 19 Ibid., at p. 551 20 Nat. Assn. of Local Government Officers v Bolton Corp., [1943] A.C. 166, [1942] 2 All E.R. 425 at 433, 437 (H.L.),

per Lords Wright and Porter, respectively. 21 Re Johnston (1970), (NB CA), 7 D.L.R. (3d) 256 (N.B.C.A.). 22 Kilby v Myers, (SCC), [1965] S.C.R. 24, (sub nom. Re Harmer) 46 D.L.R. (2d) 521; Re Hopkins(1983), (ON CA), 39 O.R. (2d) 673, 13 E.T.R. 31, 141 D.L.R. (3d) 660 (C.A.); Re O’Brien; Can. Permanent TrustCo. v Murphy (1976), (NS SC), 24 N.S.R. (2d) 45 (T.D.). 23 Supra 24 Supra 25 Re Walker (1925), 56 O.L.R. 517 at 522 (C.A.), per Middleton J.A. See also Re Hornll, (ON CA),[1945] O.R. 58, [1945] 1 D.L.R. 440 (C.A.); Re Taylor, 19 Sask, R. 361, (SK SU), [1982] 6 W.W.R 109, 12 E.T.R.177 (Surr.

Ct.); Re Freedman; Royal Trust Co. v Freedman, (MB KB), [1974] 1 W.W.R. 577, 41 D.L.R. (3d) 122(Man. Q.B.); Re Stanners, (SK KB), [1978] 3 W.W.R. 70, 2 E.T.R. 107, 85 D.L.R. (3d) 368 (Sask. Q.B.); Brown vSchleyer (1979), (NB CA), 27 N.B.R. (2d) 63, 60 A.P.R. 63 (C.A.). 26 See, e.g., Re Shamas, (ON CA), [1967] 2 O.R. 275, 63 D.L.R. (2d) 300 (C.A.): Huffman v Nichols(1979), (ON SC), 25 O.R. 521, 5 E.T.R. 59, 101 D.L.R. (3d) 365 (H.C.); Re Hyslop (1978), 3 E.T.R. 216 (Ont. H.C.).And see Gilbert D. Kennedy, “Comment” (1950), 28 Can. Bar. Rev. 839; L.A.

Sheridan, “Gifts over with Floating Subject-Matter:Estates, Powers, Repugnancy (and the Intention of the Testator)” (1977), 7 Man. L.J. 249. The Administration of Justice Act 1982, c. 53(U.K.), s. 22 takes the opposite approach. It provides that when a testator gives an apparently absolute interest to his or her spouse, but bythe same instrument purports to give his or her issue an interest in the same property, prima facie the gift to the spouse is absolute. 27 Re MacDonnell (1982), (ON CA), 35 O.R. (2d) 578, 11 E.T.R. 52 at 57-8, 133 D.L.R. (3d) 128(C.A.), per Lacourcière J.A.; Kilby v.

Myers, supra, footnote 16, at S.C.R. 28-9, per Ritchie J.; Re Crone (1969), (BCCA), 5 D.L.R. (3d) 317 at 326 (B.C.C.A.), per Bull J.A.; Vickers v. Arbeau Estate (1988), 31 E.T.R. 154 (N.B.Q.B.); Ferguson v.Ferguson (1992) 45 E.T.R. 36 (Man. C.A.); Doyle v. Doyle Estate (1995), 9 E.T.R. (2d) 162 (Ont. Gen. Div.), and see Archie J.Rabinowitz, Comment (1996), 16 E. & T.J. 17; Maher v. Bussey (2006), 2006 NLCA 28 , 25 E.T.R. (3d) 7, 269 D.L.R. (4th)353 (N.L. C.A.). 28 Re Harrison; Turner v. Hellard (1885), 30 Ch.

D. 390 at 393 (C.A.), per Lord Esher, M.R. 29 Re McEwen (1967), (BC CA), 62 W.W.R. 277, 66 D.L.R. (2d) 87 at 92 (B.C.C.A.), per Tysoe J.A.;Re Klein, [19811 (BC CA), 1 W.W.R. 41, 21 B.C.L.R. 273, 7 E.T.R. 176 (C.A.); Re MacDonnell, supra, footnote 21;Re Crago (1976), (ON SC), 12 O.R. (2d) 356 at 360,69 D.L.R. (3d) 32 (H.C.), per Galligan J.; Melna v. Hall (1999),29 E.T.R. (2d) 274 (Man. Q.B.), additional reasons at (2000), (sub nom. Hall Estate, Re) (MB KB), 143 Man. R.(2d) 98 (Q.B.), affirmed (2000), 2000 MBCA 36 , 148 Man.

R. (2d) 128 (C.A.), leave to appeal refused (2000), 156 Man.R.(2d) 320 (note) (S.C.C.). 30 Kilby v. Myers, (SCC), [1965] S.C.R. 24 at 28-9, (sub nom. Re Harmer) 46 D.L.R. (2d)521, perRitchie J. 31 (1991), 45 E.T.R. 50(Ont. Gen. Div.). 32 (1999), 1999 BCCA 371 , 175 D.L.R. (4th) 318, 28 E.T.R. (2d) 168 (B.C.C.A). 33 For a similar case see Campbell Estate, Re (2005), 2014 BCSC 1970 , 20 E.T.R. (3d) 134 (B.C.S.C.). 34 These cases are discussed later in this chapter. 35 Re Stuart (1983), 13 E.T.R. 74 (Ont. H.C.).

See also Re parsons (1979), 19 Nfld. & P.E.R.R. 531, 4 E.T.R. 189 (Nfld.C.A.); Re Diver (1962), (AB CA), 39 W.W.R. 612, 34 D.L.R. (2d) 667 (Alta. C.A.). 36 Re Manning (1978), (ON CA), 19 O.R. (2d) 257, 2 E.T.R. 195 at 206, 84 D.L.R. (3d) 715 (C.A.),per Houlden J.A.; Re Dolands Wills Trusts, [1970] Ch. 267 at 271-2, [1969] 3 All E.R. 713, per Buckley J.; Re Allsop, [1968] Ch. 39 at47, [1967] 2 All E.R. 1056 (C.A.),per Lord Denning M.R. 37 Ibid. And See Re Freeman (1975), 20 N.S.R. (2d) 644 at 659 (T.D.), per Dubinsky J. 38 Hauck v. Schmaltz, (SCC), [1935] S.C.R. 478, (sub nom. Re Hauck; Hauck v.

Hauck) [1935] 3D.L.R. 691 at 693, per Lamont J.; Re Schumacher (1971), (MB CA), 20 D.L.R. (3d) 487 at 489 (Man. C.A.), perDickson J., affirmed (1974), (MB CA), 38 D.L.R. (3d) 320 (S.C.C.); Re Kirk, (ON SC), [1956]O.W.N. 418, 2 D.L.R. (2d) 527 at 528 (I-I.e.), per Kelly J.

39 Re Burke, (ON CA), [1960] O.R. 26 at 32, 20 D.L.R. (2d) 396, per Laidlaw J.A. 40 Re Gregory’s Settlement and Will (1865), 34 Beav. 600, 55 E.R. 767; Coard v. Holderness (1855), 20 Beav. 147, 52E.R. 559. 41 Re Spadafore, [19501 O.W.N. 709 at 710 (H.C.), per Smiley J., affirmed [1951] O.W.N. 698 (sub nom. Spadafore v.Prest) (CA.). 42 Re Adams, [1957] O.W.N. 568 (CA.); Re Alcock, [1945] Cli. 264; Re Verdonk (1979), (BC SC), 7E.T.R. 143 at 154-5, 106 D.L.R. (3d) 450 (B.C.S.C.), per Hinds L.J.S.C. 43 Finucci (Attorney of) v. Finucci Estate (2002), 48 E.T.R. (2d) 33 (Ont. Div. Ct.). See also Lair v.

Mak Estate (2004),10 E.T.R. (3d) 152 (Ont. S.C.J.). 44 If one appears in the will and the other in the codicil, the latter impliedly revokes the former. 45 Re Potter’s Will Trust; Re Thompson Settlement Trusts, [1974] Ch. 70. 46 Re Hammond; Hammond v. Treha rite, [1938] 3 All E.R. 308. See also Re Masoud (1959), (ONSC), 16 D.L.R. (2d) 134 at 137, 141 (Ont. H.C.), per Wells J. 47 Ridout v. Pain (1747), 3 Atk. 486,26 ER. 1080; Re Richardson (1921), 20 O.W.N. 241 at 242 per Middleton J.; ReAlexander’s Will Trusts, [1948] 2 All E.R. 111 at 113, per Roxburgh J.; Re Bagshaw’s Trusts (1877), 46 L.J.

Ch. 567, holding that thebeneficiaries took the property in Succession. 48 Re Crombie; Crombie v Cavanaugh (1978), (NB KB), 23 N.B.R. (2d) 139 (T.D.); Piper v Piper(1886), 5 N.Z.l.R. 135 49 Re Iverson, (AB KB), [1950] 2 W.W.R. 1021 at 1025 (Alta. T.D.), per Clinton J. Ford J.; Re Gare;Filmer v. Carter, 11952] Ch. 80 at 84, per Harman J. 50 Re Potter’s Will Trust [1974] Ch. 70 at 77, per Lord Greene M.R. 51 See e.g. Re Burke, (ON CA), [1960] O.R. 26, 20 D.L.R. (2d) 396 (C.A.); Re Crombie (1978), (NB KB), 23 N.B.R. (2d) 139 (T.D.).