Guay Estate (Re), 2011 ABQB 743

Court of Queen ’ s Bench of Alberta Citation: Guay Estate (Re), 2011 ABQB 743 Date: 20111201 Docket: ES03 134172 Registry: Edmonton Court File Number ES03 134172 Court Court of Queen’s Bench of Alberta (Surrogate Matter) Judicial District Edmonton Estate Name Clement Joe Guay Applicant and Personal Representative Donald Raymond Guay Respondent Lorraine Ivany _______________________________________________________ Reasons for Judgment of the Honourable Mr.

Justice Donald Lee _______________________________________________________ [ 1 ] The Applicant Personal Representative seeks an Order from the Court allowing him to carry out an immediate distribution of the entire estate in accordance with the terms of the Will of the Deceased. The Applicant was the sole beneficiary of the estate under the Will, which has been probated. No action has been take to set the Will aside, and no claim has been filed under the Dependants Relief Act , R.S.A. 2000, c.

D-10.5. [ 2 ] The application for immediate distribution of the estate is opposed by counsel for the Deceased ’ s daughter who it is submitted may be disabled and who may be dependent under

Section 1 (d)(iv) of the Dependants Relief Act which includes under the definition of “ dependants ” : – (d)(iv) 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

(d)(iv) 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; [ 3 ]

Section 3 of the Dependants Relief Act provides for maintenance support for such a dependant under certain circumstances as follows: – Order for maintenance support 3(1) If a person (

a) dies testate without making in the person ’ s will adequate provision for the proper maintenance and support of the person ’ s dependants or any of them, or (

b) dies intestate and the share under the Intestate Succession Act of the intestate ’ s dependants or of any of them in the estate is inadequate for their proper maintenance and support, a judge, on application by or on behalf of the dependants or any of them, may in the judge ’ s discretion, notwithstanding the provisions of the will or the Intestate Succession Act, order that any provision that the judge considers adequate be made out of the estate of the deceased for the proper maintenance and support of the dependants or any of them.

(2) The judge on the hearing of the application (

a) may inquire into and consider all matters that the judge considers should be fairly taken into account in deciding the application, (

b) may in addition to the evidence adduced by the parties appearing direct any other evidence to be given that the judge considers necessary or proper, and (

c) may accept any evidence that the judge considers proper of the deceased ’ s reasons, so far as ascertainable, (

i) for making the dispositions made by the deceased ’ s will, or (ii) for not making adequate provision for a dependant, including any statement in writing signed by the deceased.

(3) In estimating the weight to be given to a statement referred to in subsection (2)(c), the judge shall have regard to all the circumstances from which any inference can reasonably be drawn as to the accuracy or otherwise of the statement.

(4) The judge may make a suspensory order suspending in whole or in part the administration of the deceased ’ s estate so that an application may be made for an order making specific provision for maintenance and support.

(5) 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.

(6) When a testator dies intestate as to part of the testator ’ s estate, the judge may make an order affecting either the part of the estate as to which the testator died testate or the part as to which the testator died intestate or as to both parts. [ 4 ] The Personal Representative and sole beneficiary deposes that he is the Deceased ’ s eldest son. The Deceased father passed away on April 22, 2011 at 95 years of age. The father ’ s Will was probated on August 2, 2011.

The father was predeceased by his wife, and left three surviving children – the Personal Representative, the possible dependent adult, and another son who supports the Personal Representative ’ s application. The net value of the estate presently is approximately $100,000. All the surviving children are over 65 years of age. [ 5 ] The Personal Representative deposes that in 2008, the father gave him $10,000, but agreed to accept the money only on the basis that he would share it with his siblings. His brother and sister then each received $3,333 at that time.

In 2009 the father made a gift from his savings of $10,000 to each of the three children. [ 6 ] The Personal Representative deposes that he knows that it was not his father ’ s wish to provide any share of the estate to his sister. [ 7 ] Furthermore the Personal Representative denies that the sister is a “ dependant ’ under the Dependants Relief Act for the following deposed to reasons: – (

a) The father lived in a seniors lodge on his own from July 2004 until the date of his death in 2011. While the father lived at the seniors lodge, the sister lived in a house she owned with her husband in St. Albert for much of this time, and in the last while has lived in a rented house in St. Albert. In the years leading up to his father ’ s death, the father ’ s bank account shows no evidence of any monies being given to the sister. The sister received an inheritance of $75,000 from an aunt in 2006, and a divorce settlement in 2009 or 2010.

As the sister is 65 years of age, she is entitled to federal and other pension benefits. [ 8 ] The sister ’ s lawyer insists that his client is obvious suffering from serious psychiatric and psychological problems to the point where he is having great difficulty obtaining instructions from her. Counsel believes that the sister has psychiatric and/or psychological problems that likely render her a dependent adult for purposes of the Dependants Relief Act .

The Personal Representative acknowledges that the sister has received psychiatric and psychological counselling over the years, but deposes that so has his brother and he. The only mental disorder the Personal Representative knows of is that the sister may have some sort of obsessive/ compulsive condition. Conclusion [ 9 ] A Grant of Probate has been issued to the Personal Representative as of August 2, 2011. As part of the NC3 included in the Application for Probate, the Personal Representative stated that the Deceased had no children “ unable by reason of mental or physical disability to earn a livelihood ” .

Since this is being directly challenged by the sister, notice under the Dependants Relief Act should have been provided. [ 10 ]

Section 17 of the Dependants Relief Act provides that no distribution of an estate will be allowed until six months after the Grant of Probate as follows: – Distribution of estate 17(1) Until the expiration of 6 months from the grant of probate of the will or of administration, the executor, administrator or trustee

shall not distribute any portion of the estate to any beneficiary without the consent of all the dependants of the deceased, or unless authorized to do so by order of a judge made on application.

(2) Nothing in this Act prevents an executor, administrator or trustee from making reasonable advances for maintenance to dependants who are beneficiaries.

(3) If an executor, administrator or trustee distributes any portion of the estate in contravention of subsection (1) and provision for maintenance and support is ordered by a judge to be made out of the estate, the executor, administrator or trustee is personally liable to pay the amount of the distribution to the extent that the provision or any part of it ought, pursuant to the order or this Act, to be made out of the proportion of the estate distributed. [ 11 ] Accordingly I conclude at a minimum then that the sister should have that six month period in which to issue a claim as a dependant.

Therefore I direct that the distribution of the estate will not occur until at least February 2, 2012. The application for an immediate distribution of the estate in accordance with the Last Will and Testament of the Deceased is denied at this time. Heard on the 25 th day of November, 2011. Dated at the City of Edmonton, Alberta this 1 st day of December, 2011. Donald Lee J.C.Q.B.A. Appearances: David C. McGreer Gaffney McGreer LLP for the Applicant William A. Dushenski Blakely & Dushenski for the Respondent