McLeod Estate (Re), 2012 ABQB 384

Court of Queen ’ s Bench of Alberta Citation: McLeod Estate (Re), 2012 ABQB 384 Date: 20120612 Docket: ES03 124664 Registry: Edmonton Court File Number ES03 124664 Court Court of Queen’s Bench of Alberta (Surrogate Matter) Judicial District Edmonton Estate Name David William James McLeod Personal Representative and Applicant Lisa McLeod Beneficiary and Respondent Rose McLeod _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Peter Michalyshyn _______________________________________________________ I.

Introduction [ 1 ] The Applicant is Lisa McLeod, the executor of the estate of her late father Jim McLeod. The Respondent is Jim ’ s widow, Rose McLeod. Jim died in 2006. Now almost six years later the parties appear before me in afternoon Chambers, thick briefs in hand, conflicting affidavits at the ready, wishing to argue and have decided their dispute over a collection of wood and machinery worth an estimated $35,000. [ 2 ] The parties understandably wish to avoid a trial over the relatively small sum in dispute. But what of the conflicting evidence? None of it was apparently tested in examinations.

None of it could apparently be reduced to a formal agreed statement of facts not in dispute. Yet the parties joined ranks in asking the court essentially to ‘ figure it out ’ by parsing through the affidavits in search of unconflicting evidence, then deciding the legal issues. It is worth asking, if only rhetorically, if this should be the everyday

work of the court in afternoon Chambers, or at all, when absent special circumstances the parties find it uneconomic to put facts before the court by less imperfect means. The alternatives may have been to order the case to trial, or to compel an attempt at least at an agreed statement of facts. In any event, with some hesitation I agreed to the approach requested of me by the parties. On the evidence and for reasons which follow the application to determine ownership of the wood and machinery in question is resolved in Rose ’ s favour. II. Facts [ 3 ] Jim McLeod died on September 26, 2006 in Fort St.

John, British Columbia. His will, dated August 30, 2006, is silent with regard to wood or machinery. [ 4 ] Jim was a collector of wood, both rare and exotic but to some agree also conventional. Distinct from the wood was an extensive collection of woodworking tools and equipment. I will refer to it all hereafter as the “ wood collection ” . [ 5 ] Jim and Rose McLeod lived together in Fort St. John from 1980 until Jim ’ s death in 2006. They were married in 1986. The wood collection started to accumulate in 1980. The wood collection grew, eventually taking over the garage attached to the house.

As a result, some of the wood was placed at a commercial property in Fort St. John owned by Jim ’ s solely-owned company, Derrick Machinery Co. Ltd. That wood was kept in a separately-accessed room. Some wood was also kept in a shed and in a trailer. Each was owned by Derrick Machinery. [ 6 ] There was much evidence in the affidavits regarding keys to these various facilities and who had possession of them, and when.

I am unable to reconcile any of this conflicting evidence and therefore place no weight on it. [ 7 ] Jim and Rose were both members of the International Wood Collectors Society since 1996 and became lifetime members in 1998. Starting in 1999 they travelled twice yearly to international meetings of the society. Jim and Rose both had bid numbers for auctions held in conjunction with society meetings. [ 8 ] C-Can storage units were purchased at Jim ’ s request shortly before his death. The C-Cans were intended to house wood then stored at the various commercial properties.

The C-Cans were themselves to be located at another property north of Fort St. John. [ 9 ] Lisa prepared a statement of assets, liabilities and distribution in separate British Columbia proceedings in 2007 ( “ the 2007 statement ” ). That statement is silent with regard to whether wood collection forms part of the Estate.

The 2007 statement does identify numerous other assets including four old motor vehicles, each valued at an estimated $500. [ 10 ] In an affidavit of August 10, 2007 Lisa states “ I have made a diligent search and enquiry to learn the assets and liabilities of Father ” and “ I will disclose forthwith to the court the existence of any assets or liabilities in British Columbia not disclosed in Exhibit J ” (Exhibit J being the 2007 statement). [ 11 ] Lisa says she failed to list the wood collection in the 2007 statement because she had no sense of its value.

She states she received legal advice in British Columbia that it was unnecessary at that time to list the wood collection. There is no direct evidence on the point from the lawyer in question. [ 12 ] Lisa was able to place an estimate of $35,000 for the wood collection in her later May 26, 2011 affidavit. Exhibit C to that affidavit is a “ short list ” of what Lisa states was the wood and woodworking inventory as of September 26, 2006, the day of Jim ’ s death. No information was provided as to when the listings were prepared, or for what purpose. No values are attached to the listing of wood.

No back-up is provided for the values attached to the listing of used machinery. [ 13 ] Aside from the “ short list ” , Lisa ’ s affidavits make few references to specific amounts paid for wood or values for wood or machinery.

[ 14 ] On September 15, 2006 during a visit with Jim at Fort St. John Hospital, Jim asked Lisa to price out the three large storage units (C-Cans) to store wood. Lisa made these arrangements including clearing the land north of Fort St. John in order to move the C- Cans to those lands so that wood could be sold from the C-Cans at that location. [ 15 ] In fact the C-Cans were never moved to the location north of Fort St. John, but were located on the commercial property.

In due course it was decided the wood would be sold from the commercial property premises rather than from the C-Cans. [ 16 ] Rose was involved in selling the wood collection. The evidence suggests the wood collection was sold between about June- October 2007. [ 17 ] In addition to selling the wood collection, Rose assisted in the administration of the Estate in the summer, 2007 by selling items owed by Derrick Machinery. Rose accounted to Lisa for all such sales.

She never accounted for wood collection sales and was not asked to do so before around October 15, 2010. [ 18 ] Lisa McLeod as executor of the Estate swore two affidavits relating to the application before me, the first May 26, 2011 and filed May 27, 2011 – before Rose ’ s affidavit sworn June 23, 2011 – and the second January 16, 2012, sworn in response to Rose ’ s aforementioned affidavit. [ 19 ] In her first affidavit Lisa states she has no knowledge of Rose paying for any of the wood nor for any of the machinery.

She states: From my review of the limited records I have of my father before his death, and my past knowledge, it appears that during his lifetime, my father either purchased or was gifted all the wood contained in the wood collection with his own money ... I believe most of his machinery was purchased at the House of Tools in Edmonton ... [ 20 ] Certain records are referred to in exhibits attached to Lisa ’ s affidavit. Those records do not obviously support her assertion that “ all ” the wood contained in the wood collection was either gifted to Jim or purchased by him.

Lisa provides no further details regarding her “ past knowledge ” . [ 21 ] Lisa states that at least some of the wood collection was made up of presents given to Jim, or in some cases were purchases Lisa helped him make. She deposes that she “ believes ” Jim paid for the woodworking equipment in the garage at the house entirely on his own from his own resources. She sets out no particular basis for that belief. [ 22 ] Lisa states she was aware that in 2007 Rose was selling most of the wood collection.

While Lisa believed at that time these sale proceeds would form part of the residue of the Estate, and while she said she felt uncomfortable that Rose retained the funds personally, “ I chose not to raise this as an issue at that time as I felt that the proper distribution would be determined along with the rest of my Father ’ s estate. ” [ 23 ] Lisa acknowledges Rose made certain loans to the Estate owing to its cash-poor status following Jim ’ s death. There is evidence of deposits by Rose in the sum of almost $34,000.

Lisa denies however she knew Rose used funds from wood collection sales to make the loans. [ 24 ] In her second affidavit of January 16, 2012, Lisa says she “ very much doubts ” Rose ’ s affidavit evidence regarding domestic wood given to her and Jim during his lifetime. She provides little if any basis however for her “ doubts ” . [ 25 ] Lisa states at para. 3 of her second affidavit:

My father was an avid wood collector and carpenter since 1975 when he built our family two storey log cabin with handmade birch cupboards and furniture. He made decisions about his wood right up to his death. He made his Will only a month before his death and did not mention giving his wood collection to Rose. [ 26 ] At para. 23 of the same affidavit, Lisa states: I spoke to my father about the wood when he was in the hospital. He had been medi-vacced to Fort St. John and he was only lucid for less than a week in Fort St. John.

During this time he signed a cheque with respect to the C-Cans that were meant to house the wood. My father said that Rose would assist in selling the wood. He did not tell me that the wood would belong to her. [ 27 ] In response to Rose ’ s affidavit evidence that she purchased some of the tools and machinery, Lisa states she “ absolutely believes ” Jim paid for all these items. Other than to note Rose failed to produce any receipts, Lisa provides no basis for her belief. [ 28 ] At para. 31 of her second affidavit Lisa states “ It is not true that Rose and my father collected almost all of the wood ” .

She goes on to state: I spent a great deal of time researching exotic woods for my father and providing him with notices of sales of exotic woods. My father often would provide me with a website address and ask me if I could print out the wood prices that showed on line. My husband and I usually brought back wood for dad from our vacations. We also took him to a dealer of elevator wood as my husband just finished a documentary on the demolition of grain elevators in western Canada. My father bought a truck load of elevator wood.

I know that he purchased most of the wood on his own. [ 29 ] This aside, Lisa offers no other support for her evidence Rose is lying when saying she and Jim collected almost all the wood. [ 30 ] Lisa does not specifically address para. 43 of Rose ’ s June 23, 2011 affidavit. [ 31 ] In her affidavit filed June 23, 2011, Rose states she has been a long-time wood enthusiast, contrary to Lisa ’ s denials in that regard. Rose states she and Jim both purchased wood at auctions. She states “ most of ” their purchases of exotic woods were made by cash. She states she and Jim paid for the purchases equally.

She states she and Jim never talked about who owned what wood; she considered the wood was theirs, together. [ 32 ] Rose states Jim expressly gifted the wood collection to her shortly before his death. [ 33 ] Paragraph 43 of her affidavit is headed “ Gift to Rose Marie ” . That paragraph states: Jim made it clear on several occasions in the summer of 2006, before he passed away, that the wood and wood working equipment was mine. Jim told that to Lisa, Irene [ ...] (Jim ’ s sister) and me, when he was in the hospital room in Edmonton a couple of weeks before he passed away.

His words were “ the house is Rose ’ s, everything in the house is Rose ’ s, the wood is Rose ’ s, anything to do with the wood is Rose ’ s ” . Lisa is not being forthright by leaving out this information from her affidavit.

[ 34 ] Rose states that “ much of the wood that Jim and I had came from my property or my brothers and sisters properties in Manitoba ” (at para. 22). Her evidence in that regard is supported by an affidavit sworn by her brother who deposes as to logging wood and providing it to both Rose and Jim as domestic rough lumber. Rose states she and Jim received gifts of wood from Rose ’ s side of the family. Her evidence was extensive with regard to the various sources of such wood from Manitoba and British Columbia. [ 35 ] Rose states she owned some of the wood and machinery outright.

At para. 38 of her affidavit, Rose states she paid her fair share at House of Tools and Lee Valley for woodworking tools. No receipts are exhibited. [ 36 ] Jim ’ s sister Irene swore an affidavit filed June 28, 2011. Irene is Jim ’ s sister. She stated: In the summer of 2006, the wood collection came up in conversation on several occasions, both at my house and at the hospital. On every occasion it came up, Jim said words to the effect that the wood collection was Rose Marie ’ s. On one occasion in particular, the conversation took place in the living room of my house. Jim and Rose Marie and I were present.

Jim said to Rose Marie that the contents of the house they lived in and the wood were Rose Marie ’ s. Jim specifically said to Rose Marie, ‘ The wood is all yours ’ ... [ 37 ] Irene further deposed that in mid-2007 Rose told her she used proceeds from the sale of some of the wood collection to make loans to the estate. III. Analysis [ 38 ] The parties agree that B.C. law applies to determine both ownership of the wood collection, and whether a valid gift was made. Joint ownership issue [ 39 ] The Respondent says there is uncontradicted evidence that Jim and Rose owned all of the wood collection.

As such, on Jim ’ s death his interest passed to Rose, and not to his Estate. [ 40 ] There was some initial disagreement whether in law jointly-owned property such as the wood collection passed to Rose upon Jim ’ s death. Counsel provided further written submissions on the point. The Respondent cites McMillan v. Johnson Estate 2010 BCSC 1929 . The Applicant cites no contrary authority.

As such, this question appears to be conceded in the Respondent ’ s favour, and appropriately given McMillan and the other cases referred to in it, although the Applicant continues to argue that not all the property was jointly owned in the first place, and of that which was jointly-owned, Jim severed the joint tenancy shortly before his death. [ 41 ] I agree there is some evidence that not all the wood collection was jointly owned.

Or putting it another way, there is some uncertainty in the evidence whether it was all jointly-owned. [ 42 ] On the other hand, on all the evidence I would conclude that much of the wood collection was jointly owned. In so concluding, I have disregarded Lisa ’ s evidence that “ all of ” the wood collection was Jim ’ s alone. As noted, such unequivocal statements are supported by little if any other evidence.

It would not be appropriate to rubber-stamp such vague and uncertain statements as being in conflict with other, more specific evidence to the contrary. [ 43 ] Lisa states she “ very much doubts ” Rose ’ s own evidence regarding domestic wood given to Rose and Jim during his

lifetime. Lisa’s doubts are unsupported by any other evidence. I am unable to find any material conflict arising as between her evidencein this regard, and Rose’s. [44] Lisa mentions various things that are “odd” to her. Without exception what she believes is odd is, without more, of little or novalue in these proceedings. [45] Lisa says she “absolutely believes” Jim paid for all the woodworking tools and machinery. She appears to support this beliefon the fact Rose has provided no receipts to prove she purchased any of it.

Lisa is unable however to contradict Rose’s evidence at paras.38 and 79 of her June 23, 2011 affidavit. Other than noting Rose had failed to provide receipts, Lisa offers no basis for her stated ‘absolute belief’. Without more, I find no material conflict with Rose’s evidence. [46] At the end of the day I am left able to conclude only that much of the wood collection was jointly owned, while some wasnot. [47] What are the implications of that finding?

The Respondent says the Applicant has the onus of proving in concrete terms thatall or part of the wood collection belongs to the Estate, that is to say, that all or part of it belonged to Jim only before he died, or that hesevered the joint ownership also before he died. The Respondent argues it is “game over”, so far as the current application is concerned,if the Estate cannot show which wood or machinery was Jim’s only even before the alleged gift. [48] Lisa objects to the onus placed on her to satisfy the burden of proving ownership.

She argues information and recordsrelevant to ownership are in Rose’s power or possession, or in her memory. Be that as it may, I would not reverse the usual onus of ‘shewho alleges, must prove’ in the circumstances here. The Estate through Lisa is clearly the party alleging. [49] Undoubtedly “...policy, fairness and probability may influence the incidence of either the evidential burden or the persuasive burden ... to achieve efficiencies or to level the playing field”: Sopinka, Lederman & Bryant The Law of Evidence in Canada (3rd ed., atp. 128).

Yet here there is no injustice in maintaining the onus on the Applicant. Lisa could easily have helped herself in determining what was in Rose’s power or possession through questioning on her affidavit and requests for production of records, including those inthe hands of third parties, for example, those to whom the wood collection was sold. As mentioned, I am aware of no such discoverytaking place leading up to the within application.

To reverse the onus in these circumstances would both unfairly reward the Applicantand unduly prejudice the Respondent. [50] It is therefore the Estate’s obligation to prove what wood and machinery Jim owned solely for which it now seeks anaccounting. It has not met that obligation in the application before me. Until the Estate shows concrete ownership, no obligation toaccount arises. [51] Nor in my view has the Estate proven that near his death Jim severed any joint ownership of the wood collection. Thisargument was not raised by the Applicant in her originally-filed materials.

It was raised for the first time in the Applicant’s furthersubmissions addressing the joint ownership issue mentioned above. It is questionable whether the Applicant is entitled to raise a newargument at this stage of the application. That said, the Respondent has not objected to the new argument being raised, nor indeed hasshe even responded to it. If only in the interests of finality then I will deal with the merits of the severance issue. [52] The Applicant cites Walker v. Dubord (BCCA). The Applicant also argues, relying on academicauthority, that a joint tenancy can be severed through unilateral action.

With respect, the test is considerably more nuanced than that. Infact, Walker v. Dubord states clearly that not any unilateral action will have the effect of severing a joint tenancy: In Canada, the cases adopt the principle that, as a matter of law, a unilateral declaration of intention does not sever the joint tenancy: seeSorensen v. Sorensen, 1977 ALTASCAD 53 , [1977] 2 W.W.R. 438 (Alta. S.C. A.D.), Munroe v. Carlson, (BC SC), [1976] 1 W.W.R. 248 (B.C.S.C.) and Rodrigue v. Dufton (1976), (ON SC), 72 D.L.R. (3d) 16 (Ont. H.C.).

In Sorensen, the declared intention by one joint tenant to sever, without further act, was held not to sever the tenancy. In both Munroe v.Carlson and Rodrigue v. Dufton, the bringing of a partition action by one joint tenant, by itself, was held not to sever the tenancy.

Those cases are entirely in accord with the orthodox view that a unilateral declaration of intention to sever, because it did not destroy oneof the unities, did not result in severance. [53] To a similar effect, Kirk v. Smith (BCSC). [54] Applied to the facts before me, is there evidence even of a unilateral declaration of intention to sever any joint ownership inthe wood collection? There is certainly no direct evidence on the point. Lisa does not say that Jim told her outright anything of the sort.

The absence of such direct evidence stands very much in the way of Lisa’s cause on the severance issue. [55] As to circumstantial evidence, the Applicant argues the necessary unilateral action is Jim’s delivery to Lisa of the key topremises in which part of the wood collection was housed, and his request that Lisa arrange to purchase C-Cans and have the woodmoved into them for eventual sale. The Applicant says Jim either assigned his personal interest in the wood collection to himself, or toLisa as his Attorney or Personal Representative.

The Applicant argues these facts “[constitute] a sufficient unilateral act of severance,showing both intention and delivery, to sever any joint tenancy and create a tenancy-in-common”. (The Applicant also refers to evidencethat after Jim’s death Rose allowed this to occur, allowed the Estate to advertise the sale of the wood, and signed cheques for certainwood-moving expenses. These events occurred after the fact and of course are irrelevant to Jim’s intention on the severance issue.) [56] Lisa states that at Jim’s request Rose gave Lisa “his keys” from home.

The implication is that “his keys” were the only suchkeys. Handing them to Lisa was part of Jim’s apparent unilateral act of severance. Yet Rose has sworn that for the whole 26-yearmarriage to Jim she had keys to premises in which wood was stored. That evidence would work against the significance of Jim handingLisa “his” keys. Lisa denies Rose ever had her own keys. She states she gave Rose a key only once Lisa became executor of the Estate. [57] I have already concluded the evidence around keys is conflicting and irreconcilable.

Specifically regarding the issue ofseverance, I still find these assertions taken altogether to be in conflict. I am therefore unable to attach any significance to the allegationJim gave Lisa his keys as part of the apparent severance of joint tenancy. [58] There is no other evidence, direct or circumstantial, that Jim “assigned his personal interest in the wood collection tohimself”.

Nor was I able to find evidence in the materials before me – and none was specifically referred to – that Lisa was, before Jim’sdeath, his “Attorney or Personal Representative” to whom he assigned anything in particular. [59] For these reasons I find no evidence of a unilateral declaration or otherwise in support of an intention to sever any jointtenancy. [60] In the alternative, even if I were to accept all of Lisa’s submissions at face value on the severance point, the facts still do notadd up to actions sufficient to sever a joint tenancy. Again, more than a unilateral declaration is required.

And in each of Walker v.Dubord, Sorensen v. Sorensen, Munroe v. Carlson, Rodrigue v. Dufton and Kirk v. Smith significantly more was before the courts in addition to expressions of unilateral intention, than is present here. Yet in none of those cases was severance found. [61] In conclusion, and having rejected arguments based on severance, I repeat that I find the Applicant has failed to meet her onusto prove what part of the wood collection was Jim’s alone. To adopt the Respondent’s phrasing, it is “game over” on that issue.

The “gift” issue [62] Of course the largest remaining issue is whether, on the evidence and at law, there was a gift of the wood collection to Rosebefore Jim’s death. [63] The Respondent agrees she has the onus of proving any gift made to her before Jim’s death. She also notes the law in B.C.

does not require corroboration of a gift alleged to have been made by a now-deceased person. [ 64 ] Returning to the facts, Lisa relies on evidence of Jim ’ s dealings with the wood collection shortly before his death as inconsistent with a gift of that same wood collection to Rose.

Lisa also relies on Rose ’ s own dealing with the wood collection after Jim ’ s death, for example, acquiescing to the Estate listing the wood collection for sale, and allowing others to take away some of the wood collection itself. [ 65 ] Lisa argues these facts are evidence, close in time to Jim ’ s death, of his managing the wood collection in a manner contrary to Rose ’ s allegations of an earlier gift. [ 66 ] Having considered all the evidence properly before me I do not reach the same conclusion. I do not see Jim ’ s actions, without more, as inconsistent with an earlier gift.

His actions can be seen as consistent with a spouse managing assets he still cares about, yet has given away. What ’ s more, as will be noted I find there is significant uncontradicted evidence that he had already given her the wood collection, and no evidence that anything changed in his relationship with Rose that would motivate him to renege on that earlier intention. [ 67 ] As argued by the Respondent, it makes sense that by reason of already having disposed of his interest in the wood collection, no mention of those assets appears in Jim ’ s will.

It makes less sense that without the gift Jim would ignore such important assets in his will, instead letting them fall into the residue of the Estate. [ 68 ] Much was made in argument regarding the 2007 statement and the Estate ’ s alleged delay seeking an accounting from Rose for the wood collection sales proceeds. [ 69 ] I do have a concern arising from Lisa ’ s failure to list the wood collection in the 2007 statement. She may have had no sense of the value of those assets at the time as the y were still being sold in August, 2007. Those sales were complete by later in 2007.

There is evidence the Estate was cash-poor around that point in time. It was accepting loans from Rose. And even accepting Lisa ’ s evidence at face value that she was unaware the loans were coming from wood collection sales proceeds, it is reasonable to expect she would seek an early accounting for such sales if she considered the wood collection Estate property. [ 70 ] Lisa demanded an accounting for the wood collection only in late 2010, almost three years later. No explanation was offered for late 2010 timing of the demand.

Nor was any explanation provided for the estimated $35,000 value of the wood collection, on what it was based or when it arose, or when Lisa was able to list wood and woodworking equipment “ as of September 26, 2006" as exhibited in her affidavit. [ 71 ] Relevant too is the uncontradicted evidence that Rose sold other property of Jim ’ s and accounted for it, apparently in a timely fashion or in any event without any apparent objection on Lisa ’ s part. [ 72 ] In all, none of Lisa ’ s actions, or inactions, are consistent with the Estate owning the wood collection. [ 73 ] Lisa notes that Rose signed cheques for the cost of clearing land and to transport the C-Cans to the commercial property.

These expenses were charged against the Estate. Lisa argues these facts speak against a gift to Rose as the Estate was bearing the expense of moving/storing the wood collection. [ 74 ] I do not agree this evidence is any more than equivocal. The expenses were small – under $1,700 in total. They were incurred at a time the parties were getting along. Rose was providing services to the Estate. She was making loans to the Estate. There is more than one available inference to explain why these small sums were paid by the Estate, arguably on her behalf.

[ 75 ] Finally, and as important as anything else, there is the issue of para. 43 in Rose ’ s affidavit. As noted, Lisa does not deny the evidence stated in that paragraph. Lisa does not deny she was present when Jim said the things attributed to him. She does not deny Jim ’ s sister Irene ’ s evidence sworn June 28, 2011. On its face none of this evidence is contradicted. [ 76 ] In argument before me, through counsel Lisa suggests any lack of evidence in response to paragraph 43 of Rose ’ s affidavit is an oversight.

She suggests I should look at the overall tenor of her evidence that she denies Jim ever gifted the wood collection to Rose in the first place. [ 77 ] For example, Lisa relies on her evidence that when visiting Jim in hospital in Fort St. John, he never mentioned to Lisa that he gave Rose the wood. However, what Jim failed to say in Fort St. John does not necessarily conflict with what the uncontradicted evidence shows he did say on different occasions. [ 78 ] I am unable to ignore the absence of Lisa ’ s evidence in response to paragraph 43 in Rose ’ s affidavit.

On such a point it would be reasonable to expect Lisa at least to address if not strenuously deny the very specific evidence of her presence when Jim told Rose the wood and everything associated with it was Rose ’ s. [ 79 ] What ’ s more, Rose in her affidavit takes aim at Lisa ’ s very truthfulness.

She states: “ Lisa is not being forthright by leaving out this information [regarding her presence] from her affidavit. ” [ 80 ] Again, I am unable to ignore Lisa ’ s failure to respond in any concrete way to this serious allegation against her. [ 81 ] For all of these reasons, I conclude that the evidence as a whole supports the conclusion the wood collection was gifted to Rose before Jim ’ s death.

The legal requirements of a gift [ 82 ] Even if the facts support Jim ’ s intention to make a gift, the Applicant argues the legal requirements of a gift cannot be met in the circumstances before me. [ 83 ] No one disagrees with the three legal requirements of a valid inter vivos gift, being an intention to donate, an acceptance, and a sufficient act of delivery. [ 84 ] The Applicant argues insufficient evidence exists of Jim ’ s intention to donate. For reasons already stated I find ample evidence of such an intention. [ 85 ] I have no difficulty finding acceptance on Rose ’ s part.

I have already characterized the evidence of Jim ’ s dealing with the wood collection before his death, and Rose ’ s dealing with it afterwards. None of that evidence is in my view inconsistent with Jim ’ s gift or Rose ’ s ownership. [ 86 ] The real contest is around a sufficient act of delivery. [ 87 ] I find the cases argued by the Respondent to be much closer to the mark than those argued by the Applicant.

[88] The Respondent cites Langer v. McTavish Brothers Ltd. (BC CA), [1932] 4 D.L.R. 90 (BCCA) and Hatchv. MacKedie BCSC. [89] In Langer Macdonald J.A. said at p. 501: Physical delivery, dependent upon circumstances, the nature of the chattel and the relationship of the parties may be, as part of theevidence, a necessary element to establish a completed gift.

In other instances (as in the case at Bar) where physical delivery isunnecessary or would be an idle or purely artificial act, as where from the nature of the gift and the position of the parties the chattels exnecessitate remain in the same place before and after the gift it is sufficient if we find two contemporaneous acts, which at oncecomplete the transaction, so that there is nothing more to be done by either party. The act done by the one is that he gives; the act doneby the other is that he accepts.

These contemporaneous acts being done, neither party has anything more to do. [Lord Esher, M.R., p.76] [90] As described in Hatch, a decision which followed Langer: In Langer the donor, with the woman who he was about to marry, went to a home which he had purchased from another. He enquiredabout purchasing the furniture which was in the home. He asked his intended wife if she liked the furniture to which she responded inthe affirmative and he then said to her, "It is all yours".

They married and moved into the property and later a third party sought to seizethe goods on the claim that they belonged to the husband and not the wife. The court found that physical delivery was unnecessary as anidle or purely artificial act where the chattels remain in the same place before and after the gift and both the husband and the wife live inthat place. (at para. 24) [91] The Applicant says these cases are distinguishable.

Of course they are somewhat factually distinct but I am persuaded that thelegal principles emanating from them are applicable to the case before me. [92] Here we are dealing with a large collection of wood, tools and machinery stored at various locations but much of it whereRose herself lived. Langer is clear authority that no further act of delivery was necessary at the household. As to that part of the woodcollection stored in warehouses or sheds, I am persuaded that physical delivery would have been “unnecessary as an idle or purelyartificial act”.

To paraphrase the approach in Langer, given the nature of the gift of the wood collection, and the position of Jim andRose, it was sufficient that the assets remained in the same place; the transaction was completed, neither party had anything more to do. [93] Lisa relies on Re Nicholls Estate 1972 Carswell Alta. 63 (Alta.

CA) for the following proposition: If the facts proved were equally consistent with the idea that he intended to deliver the thing to the wife so as to be her property, and withthe idea that he intended to keep it as his own property, then the wife failed to make out her case. [94] Of course everything hinges on the facts of the individual case. On the evidence before me I do not find the facts supportingthe Estate’s position to be anything near “equally consistent” with those supporting the Respondent’s.

Estoppel issues [95] The Respondent raises estoppel to prevent the Applicant from claiming the wood collection belonged to the Estate. TheApplicant says estoppel, properly understood, does not apply here. [96] Given my findings above, I do not find it necessary to deal with estoppel issues. IV. Conclusion

[ 97 ] The Respondent succeeds on all aspects of the within application. If they are unable to agree, the parties may of course speak to costs. Heard on the 10 th day of February, 2012; Further written submissions February 23 & 24, 2012 . Dated at the City of Edmonton, Alberta this 12 th day of June, 2012. Peter Michalyshyn J.C.Q.B.A. Appearances: Doris C. E. Bonora Reynolds Mirth Richards & Farmer LLP for the Applicant Andrew Bird Rockies Law Corporation for the Respondent