Lecky Estate v. Lecky, 2012 ABQB 301

Court of Queen ’ s Bench of Alberta Citation: Lecky Estate v. Lecky, 2012 ABQB 301 Date: 20120510 Docket: ES01 096832 Registry: Calgary Between: The Personal Representatives The Lecky Foundation Caroline Frances Lecky, Jonathan Robert Sirling Lecky, Christopher Hartpole Lecky, Edward Alexander Macmillan Lecky and William Anton Hardinge Lecky Plaintiffs - and - Euphemia Sarah Ann Lecky Respondent _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice C.A. Kent _______________________________________________________ [ 1 ] In Mr.

Lecky's will, he established the Venn House trust which consisted of a large house in England and its contents. The trust was established for the benefit of Mr. Lecky's spouse, Euphemia. The relevant words of the will are:

(

c) Ven House and the Ven House Personal Effects To hold Ven House and the Ven House Personal Effects in trust during the lifetime of my spouse, Euphemia Sarah Ann Lecky, pursuant to the following trust terms: (

i) My spouse, Euphemia Sarah Ann Lecky, shall be entitled to the use of Ven House and the Ven House Personal Effects until her death. Should my said spouse wish to purchase a new residence in which to reside, I direct my Trustees to sell Ven House and any items of the Ven House Personal Effects she no longer wishes to use, if any, and to apply the proceeds from the sale to purchase a new residence and new personal effects to be located therein all as selected by my said spouse, but having an aggregate value no greater than the after tax proceeds from the sale of Ven House and the Ven House Personal Effects.

If the proceeds from the sale of Ven House and any Ven House Personal Effects exceed the purchase price of the new residence and any new personal effects to be located therein, any excess funds shall be transferred to the Lecky Foundation, provided that if The Lecky Foundation does not then subsist as a registered charity, to pay or transfer the excess proceeds to a registered charity or charities, as determined exclusively by my Trustees, having regard to the charities I have supported in the past.

The receipt of the person purporting to be the Treasurer of such institution shall be a sufficient discharge to my Trustees. [ 2 ] After Mr. Lecky died, the estate did sell Venn House. As is detailed in my judgment dealing with several aspects of the will and the estate ( 2011 ABQB 802 ), Venn House was not replaced with one house. Currently the estate has at least two and now, perhaps, three houses. In my previous judgement I directed that once any of the houses were sold, the proceeds of the sale would go to the Lecky Foundation.

My intention was that to the extent possible, I would reestablish the Venn House trust in the way it was contemplated by Mr. Lecky; that is, that any excess funds after Venn House was replaced by a house would go to the Foundation. [ 3 ] An issue has arisen with respect to the houses. Must Mrs. Lecky reside in all of the houses? Can she rent out one or some of the houses? Can she permit a family member or friend to live in one or some of the houses? Mrs. Lecky argues that all of those possibilities are available to her.

The Lecky Foundation argues that she must reside in the houses or they must be sold with the proceeds going to the Foundation. [ 4 ] Mrs. Lecky has referred me to two cases which satisfy me that had I been asked to interpret the will without dealing with what actually happened in this case, any apparent requirement in the will that Mrs. Lecky reside in Venn House or a replacement house would be void for uncertainty: See Re Down , [1968] O. J. No. 1102 (Ont. C.A.) , aff’d [1969] SCR v; Re McColgan , [1969] O. J. 1306 (Ont. H.C.) . I agree with the reasoning in those cases.

It is difficult to interpret what it means to reside in a premise. Below, I struggle with the concept in the context of this case. I also agree with Re McColgan , citing Fillingham v. Bromley (1823), Turn. & R. 530 at 536 when it says that the fundamental principle in interpreting the will is to do so in accordance with the testator's intent insofar as that can be determined. [ 5 ] In this case, I am satisfied that Mr. Lecky assumed that Mrs. Lecky would reside in a home until her death. There were suggestions during argument that as Mrs.

Lecky aged, she may move into a seniors’ residence or seniors’ care facility. While that is a reasonable alternative for the vast majority of people, it is not the option that someone of Mr. Lecky's wealth would choose for his wife. The intention of Mr. Lecky was to have a home available for Mrs. Lecky to live in because that is what he expected that she would do. It was not in Mr. Lecky's contemplation that Mrs. Lecky would have a house from which she would earn income while she lived somewhere else. [ 6 ] Because of the agreements made over the years amongst Mrs.

Lecky, the estate and the Lecky Foundation, the estate now has more than one house for the use of Mrs. Lecky. Applying what I have said about Mr. Lecky's intentions, none of those houses can be used to earn income. The houses are only there to provide a place to live. When Mrs. Lecky no longer requires any one of the houses as a place to live, that house will be sold and the proceeds paid to the Foundation. [ 7 ] That takes me to the most difficult issue, namely how will the estate know when a house is no longer required by Mrs. Lecky to live in. Is it simply on her saying so?

Is there an objective test, for example, the number of days or months each year during which the house is used? I cannot predict every future possibility but can give some guidance. As indicated above, none of the houses may be rented out on any basis. None of the houses may be used as the permanent residence of anyone other than Mrs. Lecky, any housekeeping staff that she employs and any family member that it is objectively reasonable to be living with her. What is objectively reasonable will be measured generally by Mrs. Lecky's past living circumstances.

For example, if an adult child with spouse and children has never lived with Mrs. Lecky, it is likely not reasonable that that family unit now resides with Mrs. Lecky. However, it may be reasonable that an adult grandchild attending university resides with her. I will not set a specific number of days each year that Mrs. Lecky must use any house but she must reside in each of the houses for a part of each year. Again, Mrs. Lecky's past living arrangements

will be used to measure whether she has resided in any house during any year. Heard on the 29 th day of March, 2012. Dated at Calgary, Alberta this 10 th day of May, 2012. C.A. Kent J.C.Q.B.A. Appearances: Bradley G. Nemetz, Q. C. Bennett Jones LLP for the Lecky Children and Caroline Lecky Blair R. Carbert David Cumming Stones Carbert Waite Wells LLP for the Lecky Foundation D. J. McDonald, Q. C. Burnet Duckworth & Palmer LLP for the Personal Representatives Alex Kotkas Fasken Martineau Dumoulin LLP for Euphemia Sarah Ann Lecky