Anderson Estate (Re), 2016 ABQB 683

Court of Queen’s Bench of Alberta Citation: Anderson Estate (Re), 2016 ABQB 683 Date: 20161205 Docket: ES01 119128 Registry: Calgary Court File Number ESO1 119128 Court Court of Queen’s Bench of Alberta (Surrogate Matter) Judicial Centre Calgary Estate Name James Carl Anderson also known as Anderson, J.C. and Anderson, James C. Applicants (Plaintiff) David Scobie, Thomas Walter and Brian Dau Respondents (Defendant) John Anderson, Sandra Anderson, Susan Anderson and Karen Mawhinney _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice C.M.

Jones _______________________________________________________ [ 1 ] James Carl (J.C.) Anderson (“Mr. Anderson”) died on September 3, 2015 in Calgary. Litigation has arisen in connection with his estate (“Estate”). [ 2 ] Two of Mr. Anderson’s children (John Anderson (“John”) and Sandra Anderson (“Sandra”)) have registered caveats (“Caveats”) against the title to certain parcels of land held by the Estate.

The Estate (by its personal representatives, the Applicants) herein seeks the Court’s direction that the Caveats be discharged so that the Estate may proceed with the sale to third parties of certain lands belonging to the Estate. [ 3 ] The Estate’s position is set forth in its brief entitled “Applicants’ Brief for the Case Management Application Scheduled for October 3, 2016” (“Estate Brief”). [ 4 ] John actively opposes the Estate’s application to discharge the Caveats. His position is set forth in his brief filed November 24, 2016 (“John’s Brief”).

[ 5 ] As noted in the Estate Brief, the Caveats have been registered on behalf of John and Sandra against parcels defined at page 4 of that brief as the “Lands” (comprising the “Home Place” and the “River Ranch”) and as the “Parcels adjacent to the Home Place”, collectively, the “Caveat Lands”. [ 6 ] Mr. Anderson’s will dated August 6, 2015 (“August 2015 Will”) has been admitted to probate in common form. The August 2015 Will provides at: (

a) Clause 10(

k) that: If, at the time of my death, I own any interest in the Home Place, then I direct my Trustees to sell such property and the proceeds of sale shall be divided amongst those of my children, John, Sandra and Susan, who survive me in equal shares. (

b) Clause 20 that: Those parcels of real property not specifically gifted under the terms of this my Will shall be sold by my Trustees and the proceeds of sale shall be distributed as part of the residue of my estate. [ 7 ] Accordingly, the August 2015 Will contains an express direction to sell the Home Place, which includes Parcels adjacent to the Home Place, and a provision stipulating that real property be sold unless specifically gifted under that Will.

The River Ranch is not specifically gifted under the terms of the August 2015 Will and, the Estate argues, clause 20 would therefore mandate its sale. [ 8 ] In an effort to administer the Estate, its personal representatives have sought to dispose of certain of its real property. [ 9 ] Their efforts have produced the Home Place Sale Agreement and the River Ranch Sale Agreement. Both Agreements have been amended to provide for a December 30, 2016 closing at which time the Estate is expected to convey title free of the Caveats. [ 10 ] The Estate wishes to implement the directions in Mr. Anderson’s August 2015 Will.

In the past, attempts to sell these lands to Mr. Anderson’s children on mutually acceptable terms have been unsuccessful. The Estate has, for some time now, had before it firm agreements for the sale of these lands to third parties at prices above appraised value. [ 11 ] The Estate’s analysis of the law relating to the validity of the Caveats is set forth in

Part IV of the Estate Brief. Citing sections 130 and 141of the Land Titles Act , RSA 2000, cL-4 (“ LTA ”), the Estate asserts that: 1. An interest in land capable of being protected by caveat can, pursuant to

section 130, arise pursuant to the terms of a will; and 2. John and Sandra bear the onus in a “show cause” application brought pursuant to

section 141 of establishing a prima facie claim to an interest in land. [ 12 ] The Estate asserts that the authorities cited in the Estate Brief establish that John and Sandra have no interest in the Caveat Lands which would support the filing of the Caveats.

The Estate asserts that a promise of payment under a will does not give rise to a caveatable interest and that the provisions made in the August 2015 Will respecting the Caveat Lands also would not confer any rights of specific performance on John and Sandra, required, the Estate asserts, for there to be an interest in land capable of being protected by caveat. [ 13 ] Referring to the August 2015 Will, John argues that clauses 11(e) (power to distribute in kind) and clause 11(h) (power to deal with real estate) permit the Estate (through the personal representatives) to exercise discretion with respect to real property.

John argues that because the August 2015 Will permits in specie distribution and that since the Caveat Lands, or portions of them, are lands which the beneficiaries have expressed an interest in acquiring, those beneficiaries have a prima facie claim to an interest in land. This, he argues, together with the fact that an earlier version of Mr. Anderson’s will gave an interest in certain of the Caveat Lands to John, supports the filing of the Caveats. [ 14 ] John’s Brief refers to unsuccessful attempts by John to acquire “Section 8 lands” and the River Ranch.

John, through counsel, had advised the Estate that he wished to see the sale of certain lands delayed until other issues relating to the August 2015 Will could be resolved. [ 15 ] John’s Brief argues for the Caveats to remain in place. In the alternative, if I order the Caveats to be discharged, John seeks to have my Order stayed. [ 16 ] John has submitted an offer for a portion of the lands in issue. He wishes to have an opportunity to attempt to conclude a purchase.

He is willing to pay an amount which equals or exceeds the amount which the third party purchasers are willing to pay, and potentially in respect of additional lands as well. [ 17 ] The Estate opposes John’s request. The Estate wishes to conclude the transactions which it has negotiated. No further negotiation with third parties would be required. Once the Caveats are expunged, the sales may proceed to closing on December 30, 2016. [ 18 ] Counsel for the Estate advised that if I order the removal of the Caveats the Estate intends to conclude those pending transactions.

If I remove the Caveats but stay my order so that John can continue discussions with the Estate, the Estate requests a direction that it enter into negotiations with whomever of the Anderson children wish to acquire an interest in the Caveat Lands. Decision [ 19 ] My review of counsel’s briefs, as well as Affidavits filed in support, in conjunction with oral argument before me, leads me to

conclude that: (

a) John and Sandra do not have an interest the Caveat Lands capable of protection by way of caveat; and (

b) it would be appropriate for the Court to grant the relief sought at paragraph 11. a. of the Estate’s Application filed July 15, 2016.

That is, I am prepared to grant an Order directing the Registrar of Land Titles to discharge the Caveats registered against title to the Lands and against title to the Parcels adjacent to the Home Place, notwithstanding the requirements of section 191(1) of the Land Titles Act (Alberta). [ 20 ] I give no further direction to the Estate or its personal representatives regarding the proposed sale to third parties. [ 21 ] I am not prepared to grant a stay of my Order in contemplation of further discussions surrounding the purchase of some or all of these lands by one or more of Mr. Anderson’s children.

The Estate has agreements, negotiated in good faith with third parties, in place to purchase some of the Caveat Lands. Completing those agreements will fulfill the directions in the August 2015 Will. [ 22 ] Mr. Anderson’s August 2015 Will provides that lands not specifically bequeathed are to be sold. I think it a reasonable inference from these directions that had Mr.

Anderson wanted his children to acquire specific parcels he would have either bequeathed those specific parcels (which he has done in respect of certain lands) or been more specific as to how his children were to be permitted to participate in any tender process (i.e. some form of pre-emptive right or right of first refusal). [ 23 ] While I understand that John may be actively engaged in a serious attempt to acquire certain lands, I am mindful of:

a) The fact that the Estate negotiated with third parties in good faith and now has firm agreements for the sale of certain lands;

b) The Estate’s ability to responsibly carry out further monetization of Mr. Anderson’s assets may be impaired if it cannot be relied upon to fulfill its obligations;

c) The pending sale to third parties may be lost if a further extension is sought by the Estate or if the Estate is directed to carry on negotiations with Mr. Anderson’s children that may extend beyond December 30, 2016; and

d) Despite the parties’ best intentions, it may prove impossible to complete sales to Mr. Anderson’s children for reasons which cannot, until negotiations are pursued in their entirety, be foreseen. [ 24 ] I direct the Registrar of Land Titles to discharge the Caveats registered against title to the Caveat Lands notwithstanding the requirements of section 191(1) of the Land Titles Act (Alberta). [ 25 ] I decline to stay my direction. [ 26 ] If the parties cannot agree on costs in respect of this Application, they are directed to provide me with written submissions in that regard not later than December 27, 2016.

Heard on the 1 st day of December, 2016. Dated at the City of Calgary, Alberta this 5 th day of December, 2016. C.M. Jones J.C.Q.B.A. Appearances: Barbara Stratton, Q.C. and Lexy Wong for the Personal Representatives, David Scobie, Tom Walter and Brian Dau

Daniel Horner and Katrina Edgerton-McCutchan For John Anderson J. Edward Crane for Carolyn Anderson Brian Silver For Sandra Anderson J. Wilkins and Michael Anderson For Susan Anderson Predrag Tomic for Karen Mawhinney