Strafford Estate (Re), 2021 ABQB 417

Court of Queen’s Bench of Alberta Citation: Strafford Estate (Re), 2021 ABQB 417 Date: 20210528 Docket: ES01 120960 Registry: Calgary Court File Number ES01 120960 Court Court of Queen’s Bench of Alberta (Surrogate Matter) Judicial Centre Calgary Estate Name Barrie I. Strafford Applicant (Plaintiff) Roxanne Sissons, Personal Representative of the Estate of Barrie I.

Strafford Respondent (Defendant) Patricia Ledene-Fraser, Personal Representative of the Estate of Sheree Anne Strafford-Bliss, also known as Sheree Anne Strafford-Whyte, also known as Sheree Anne-Whyte _______________________________________________________ Reasons for Judgment of the Honourable Justice Anne L. Kirker _______________________________________________________ Introduction [ 1 ] I am asked to interpret the Last Will and Testament of Barrie I. Strafford dated October 21, 2013 (the “Will”) and determine what Dr.

Strafford intended to leave to his daughter, Sheree Anne Strafford-Bliss (referred to in Dr. Strafford’s Will as Sherrie Strafford Whyte).

[ 2 ] Dr. Strafford died on April 25, 2016. [ 3 ] Ms. Strafford-Bliss survived her father by more than twenty days as required by paragraph 8 of the Will (the “Condition of Survival”), but tragically died of a drug overdose on August 31, 2016, before the personal representative of Dr. Strafford’s estate was able to obtain a Grant of Probate to carry out Dr. Strafford’s wishes. The dispute centers around whether any or all of the gift intended for Ms. Strafford-Bliss now goes to her estate (the “Strafford-Bliss Estate”). The Will [ 4 ] Dr.

Strafford appointed his daughter, Roxanne Sissons, to be the executrix of his estate (the “Strafford Estate”) and trustee of the trusts created by his Will. The Will refers to the executrix and trustee as the “Trustee”. I use the same defined term in these reasons. [ 5 ] Paragraph 3 of Dr. Strafford’s Will begins with these words: I give and appoint to my Trustee all my property wherever located unless other provision is made hereunder, including any property over which I may have a general power of appointment, upon the following trusts. [ 6 ] Dr.

Strafford then directs his Trustee to do the following at paragraphs 3(

a) through 3(j)(i): 1. liquidate all real assets except those items specifically dealt with in his Will; 2. pay his debts; 3. liquidate a corporation in which he was the sole shareholder; 4. transfer a residential property Dr. Strafford owned in Jamaica to the Brenda Strafford Foundation Ltd. (the “Brenda Strafford Foundation”); 5. establish a trust to provide financial assistance for Dr.

Strafford’s descendants who wish to pursue a post-secondary education; 6. give specific gifts to the wife of a late friend, and to the caretaker and housekeeper of the property in Jamaica; and, 7. pay specified sums to his grandchildren. [ 7 ] At paragraph 3(j)(ii) of his Will, Dr. Strafford directs his Trustee: To divide one half (1/2) of the residue of my estate, after providing for the other bequests above herein, into four (4) equal shares and to pay or transfer one such share to each of my children, Roxanne Sissons, Sherrie Strafford Whyte, Lisa Strafford, and Miles Strafford.

I direct that the Share that is to be transferred to my daughter Sherrie Strafford Whyte be used to purchase an annuity giving her a monthly income of at least $3,500, said amount to be indexed to and increase with the rate of inflation as reported by the Bank of Canada. [ 8 ] Paragraph 3(j)(iii) states: In the event any of my children or grandchildren pre-decease me the share that he or she would have received, if alive, shall be paid to his or her estate and dealt with in accordance with his or her will or pursuant to the Intestate Succession Act or other applicable legislation, as the case may be. [ 9 ] At paragraph 4 of the Will, Dr.

Strafford instructs that the remaining residue of the Strafford Estate be paid to the Brenda Strafford Foundation. The Parties’ Positions [ 10 ] There is no dispute that Dr. Strafford was of sound mind when he made his Will. [ 11 ] The parties disagree about what Dr. Strafford intended by paragraph 3(j)(ii) of the Will, and about what the Strafford-Bliss Estate is entitled to receive in the circumstances. [ 12 ] The Strafford-Bliss Estate argues that Dr. Strafford intended that each of his four children receive an equal share of the residue of the Strafford Estate upon his death.

It contends that the direction to the Trustee to use the share “to be transferred to” Ms. Strafford-Bliss “to purchase an annuity giving her a monthly income” did not affect Ms. Strafford-Bliss’ interest in one eighth (1/8) of the residue of the Strafford Estate. The Strafford-Bliss Estate argues that this interest vested in Ms. Strafford-Bliss after Dr. Strafford died and once the Condition of Survival was met. On this basis, the Strafford-Bliss Estate asks that a one eighth share of the residue of the Strafford Estate be paid to it. [ 13 ] The Strafford Estate asserts that Dr.

Strafford intended only to provide Ms. Strafford-Bliss with a guaranteed stream of income during her lifetime, and that the income was to be provided by way of an annuity that could only be purchased while Ms. Strafford-Bliss was alive. The Strafford Estate argues that Ms. Strafford-Bliss’ death prevented the Trustee from carrying out Dr. Strafford’s wishes and brought Ms. Strafford-Bliss’ interest in the Strafford Estate to an end. On this basis, it disputes that the Strafford- Bliss Estate is entitled to receive anything from the Strafford Estate.

The Issues [ 14 ] The questions I must answer are these: 1) What did Dr. Strafford intend by the words used in paragraph 3(j)(ii) of his Will? 2) What effect does Ms. Strafford-Bliss’ death have on the gift intended for her? 3) Is the Strafford-Bliss Estate entitled to receive anything from the Strafford Estate? Decision What did Dr. Strafford intend by the words used in paragraph 3(j)(ii) of his Will? I. The Law [ 15 ] The principles that guide the

interpretation of a will are well settled. [ 16 ]

Section 26 of the Wills and Succession Act , SA 2010, c. W-12.2 states that “[a] will must be interpreted in a manner that gives effect to the intention of the testator”. This is the cardinal principle.

As stated by the Alberta Court of Appeal in Hicklin Estate v Hicklin , 2019 ABCA 136 , at para 48 , “[n]o other principle is more important than this one.” [ 17 ] The following three principles are also fundamental to the task of interpreting a will: 1. the court must read the entire will; 2. the court should assume that the testator intended the words in the will to have their ordinary meaning in the absence of a compelling reason not to do so; and 3. a court may canvass extrinsic evidence to ascertain the testator’s intention: Hicklin Estate at paras 49-51 .

See also Kirst Estate (Re) , 2020 ABCA 233 at para 7 . [ 18 ]

Section 26 of the Wills and Succession Act allows the Court to receive evidence: 1. as to the meaning, in either an ordinary or a specialized sense, of the words or phrases used in the will, 2. as to the meaning of the provisions of the will in the context of the testator’s circumstances at the time of the making of the will, and 3. of the testator’s intent with regard to the matters referred to in the will. [ 19 ] This kind of extrinsic evidence is admissible because “it promotes an accurate assessment of the testator’s wishes”: Hicklin Estate at para 77 .

As explained by the Court of Appeal in Lubberts Estate (Re) , 2014 ABCA 216 at para 9 : To be faithful to the testator’s will, a court must identify the meaning the testator wished to convey by her choice of words. This can only be done, in many cases, if the court has access to relevant evidence which records information, in existence at the time the testator signed her will, about the testator’s family and the nature of various family relationships, close friends, interests and many other facts which might influence the testator when engaged in the will-making process.

A court, aware of important information about the testator, must carefully read the entire will, giving the words she selected or approved their ordinary meaning. This assumption is made because the testator probably intended to attach the ordinary meaning the community of which she is a part gives to these words.

If the will and the context within which it is made reveals that the testator had a different intention, a court must adjust its linguistic standards and give the will a meaning consistent with the testator’s language values. [ 20 ] It is up to the Court to determine what probative value the evidence offered by the parties has.

This assessment will be a function of many factors including, for example, the source of the evidence; whether it relates to events or statements made by the testator before or after he made his will; and the health of the testator when any statement repeated by a witness was first made: Hicklin Estate at paras 80 - 89 . [ 21 ] The assessment of the evidence is also informed by s 11 of the Alberta Evidence Act , RSA 2000, c A-18 , which states that: [i]n an action by or against the heirs, next of kin, executors, administrators or assigns of a deceased person, an opposed or interested party shall not obtain a verdict, judgment or decision on that party’s own evidence in respect of any matter occurring before the death of the deceased person, unless the evidence is corroborated by other material evidence.

II. The Witnesses [ 22 ] The procedural order setting the issues in dispute for trial provided that the lay witnesses would give their evidence by affidavit. Each lay witness was entitled to give thirty minutes of direct oral evidence and to be cross-examined. [ 23 ] I received affidavits and heard oral evidence from:

1. the Trustee of the Strafford Estate, Ms. Sissons; 2. her sister, Lisa Strafford; 3. Norma Jackson, a long-time friend and business associate of Dr. Strafford; and from, 4. Ms. Ledene-Fraser, the personal representative of the Strafford-Bliss Estate. [ 24 ] Robert Schuett, the lawyer who drafted Dr. Strafford’s Will, swore two affidavits dated June 13, 2017 and July 4, 2018, which were entered as exhibits during the trial. Unfortunately, Mr. Schuett passed away before the trial. Mr. Schuett was never cross-examined on his affidavits, although the opportunity for cross-examination was offered.

I draw no inference from the failure to cross-examine Mr. Schuett. His death was not anticipated. I have considered Mr. Schuett’s sworn, but untested, affidavit evidence having regard to his professional relationship with Dr. Strafford and with reference to, and in the context of, the evidence as a whole. [ 25 ] Ms. Alison Jenner was called as an expert witness by the Strafford Estate. She assisted the Court with evidence in relation to how annuities are used and purchased in an estate planning context. [ 26 ] The Strafford-Bliss Estate sought to qualify Ms.

Cara Brown as an expert to provide the Court with evidence in relation to Bank of Canada rates of inflation. However, because there was no disagreement between the parties about what the rate of inflation as reported by the Bank of Canada would be, I determined it was not necessary to hear from Ms. Brown. [ 27 ] The Strafford-Bliss Estate also sought to qualify Mr. Charles Funk as an expert witness to assist the Court with evidence in relation to what it would cost to purchase an annuity to provide monthly payments of at least $3500 per month, indexed for inflation at a rate of 2% per year. [ 28 ] Mr.

Funk’s evidence was set out in an affidavit sworn by him on June 15, 2018. This affidavit initially was sworn in support of a

summary judgment application contemplated by the Strafford-Bliss Estate at the time. When the issues in dispute were directed to a trial, the Strafford-Bliss Estate was granted leave to file and serve a Form 25 expert report for Ms. Brown as required by the Rules of Court. No request was made to file and serve a Form 25 expert report for Mr. Funk, and no such form was ever filed and served. The Strafford-Bliss Estate asked that I relax the rules in relation to expert evidence, admit Mr. Funk’s affidavit as his expert report, and allow him to testify. [ 29 ] I was not prepared to do so. Mr.

Funk’s affidavit did not contain much information about his qualifications. More importantly, it did not set out the information and assumptions upon which his opinion was based. Leaving aside questions of relevance and necessity for the purpose of deciding the issues in dispute, I determined it would be unfair to admit the evidence because the Strafford Estate would be limited in its ability to test Mr. Funk’s opinion. I have disregarded Mr. Funk’s affidavit. III. Evidence and Findings of Fact [ 30 ] Dr. Strafford had a background in accounting and economics. He was an astute and respected business person.

He enjoyed considerable financial success during his lifetime. He managed his wealth carefully to look after his family, and to benefit the community in Alberta, and elsewhere, through the Brenda Strafford Foundation. He established the Brenda Strafford Foundation in honor of his wife, who passed away in 1974. It is fair to say that family and the foundation were very important to Dr. Strafford. [ 31 ] Mr. Schuett’s affidavit sworn June 13, 2018, states that during his discussions with Dr. Strafford in relation to the Will, they: ... discussed, at length, the importance to [Dr.

Strafford] that he create a legacy for his children, his grandchildren and the Brenda Strafford Foundation. [ 32 ] Ms. Sissons described Dr. Strafford as a loving and supportive father who demanded excellence in himself and in others. Ms. Strafford said Dr. Strafford was strict and expected his children to work hard. Both gave evidence indicating that Dr. Strafford was supportive of Ms.

Strafford-Bliss, financially and otherwise, but that his relationship with her was strained over the years because of her use of drugs, her failure to maintain employment and her tendency to spend more money than she made. [ 33 ] I accept this evidence as true. Emails exchanged between Dr. Strafford and Ms. Strafford-Bliss and documents in Mr. Schuett’s estate file support what Ms. Sissons and Ms. Strafford said about their father’s expectations, his difficult relationship with Ms. Strafford-Bliss, and his ongoing efforts to help her. [ 34 ] Mr.

Schuett deposed that before and after the preparation of his Will, Dr. Strafford talked to him about Ms. Strafford-Bliss and his concerns about her drug abuse, mismanagement of money, and inability to maintain employment or volunteer activities. Mr. Schuett described Dr. Strafford being “at the end of his rope” with Ms. Strafford-Bliss at or around the time his Will was made. [ 35 ] I find that Dr. Strafford’s concerns about Ms. Strafford-Bliss informed his testamentary objective in relation to her. Mr. Schuett’s evidence confirms that: The instructions [he] received from [Dr.

Stafford], were directed, in part, at [Ms. Strafford-Bliss’] inability to manage money, and the Testator’s concern that [Ms. Strafford-Bliss] would wastefully dissipate her inheritance. [ 36 ] This conclusion is also supported by evidence of Ms. Jackson. [ 37 ] Ms. Jackson worked with Dr. Strafford for approximately 40 years. They had a close working relationship and spoke daily. They discussed both professional and personal matters. Ms. Jackson serves on the Board of the Brenda Strafford Foundation, but has no personal interest in the Strafford Estate. For these reasons, I find her evidence especially helpful.

[ 38 ] Ms. Jackson said: Dr. Strafford confided in me regarding his estate planning; specifically, that [Ms. Strafford-Bliss] was to receive an annuity. Dr. Strafford told me that he did not want [Ms. Strafford-Bliss] to receive a lump sum inheritance because Dr. Strafford did not believe that [Ms. Strafford-Bliss] had the ability to manage money responsibly, in part due to her drug addiction issues. [ 39 ] Ms. Jackson confirmed that Ms. Strafford-Bliss’ addiction to pain medication was long-standing and well known by Dr. Strafford and herself. Ms.

Jackson described an occasion, which I infer occurred in late 2010, when Dr. Strafford sought Ms. Jackson’s assistance to find Ms. Strafford-Bliss because he could not locate her. Ms. Jackson went to a hotel where she knew Ms. Strafford-Bliss was staying and found empty alcohol and pill bottles in the room. Thereafter, Dr. Strafford asked for Ms. Jackson’s help to locate a treatment program for Ms. Strafford-Bliss. Ms. Jackson assisted in that effort. Emails between Dr. Strafford and Ms. Strafford-Bliss in the January to March 2011 time frame indicate that Ms.

Strafford-Bliss did attend an in-patient rehabilitation facility in Ontario. Dr. Strafford paid for this treatment. Regrettably, Ms. Strafford-Bliss left early. [ 40 ] Ms. Jackson’s evidence was that “[Ms. Strafford-Bliss] attended rehab; however, she never fully recovered.” She observed that “... Dr. Strafford’s concerns regarding [Ms. Strafford-Bliss’] ability to manage money responsibly were warranted.” [ 41 ] The evidence tells me that, as a father, Dr. Strafford felt responsible for and tried to help Ms. Strafford-Bliss. At the same time, he could not overlook the potential consequences of her behaviour. Mr.

Schuett recalled that the annuity was a way to resolve these conflicting ideas. As Mr. Schuett described it, Dr. Strafford was prepared to “get rid of the money” so that Ms. Strafford-Bliss “could not get at it.” [ 42 ] Mr. Schuett’s handwritten notes in relation to his discussions with Dr. Strafford indicate it was contemplated that an annuity providing “$3000/mo for life escalated” would be a “value roughly equivalent to other children.” Mr. Schuett deposed that by the time of execution of his Will, Dr. Strafford’s instructions were that the monthly amount be $3500. [ 43 ] Ms.

Strafford-Bliss did not have children. At the time Dr. Strafford was making his Will, there is no evidence that she was in a serious relationship. She had been married to Daniel Bliss from approximately 1989 to 1994. Ms. Strafford-Bliss subsequently married David Whyte. He passed away in 2007. In the spring or summer of 2014, Ms. Strafford-Bliss reconnected with Mr. Bliss. They were married for the second time on September 1, 2014. [ 44 ] Ms. Strafford-Bliss was still married to Mr. Bliss at the time of her death in August 2016. Mr. Bliss passed away on November 4, 2016, leaving his mother, Ms.

Ledene-Fraser, as the alternate personal representative of the Strafford-Bliss Estate. [ 45 ] Witnesses called by the Strafford Estate said that Dr. Strafford did not like Mr. Bliss. I accept this is true. Again, there are emails sent by Dr. Strafford to Ms. Strafford-Bliss in evidence that reveal his disapproval. That said, at the time Dr. Strafford prepared his Will, Mr. Bliss was not yet back in Ms. Strafford-Bliss’ life. Consequently, I find this evidence is of little value in interpreting what Dr. Strafford intended by the words of his Will. [ 46 ] Ms. Ledene-Fraser never met Dr.

Strafford and so was unable to offer any evidence in relation to his circumstances or testamentary intention. IV. Analysis [ 47 ] It is clear that Dr. Strafford had concerns about Ms. Strafford-Bliss that he did not have about his other children. While I accept that Dr. Strafford anticipated Ms. Strafford-Bliss would ultimately receive an amount that was comparable to the shares of the residue he was giving to his other children, it is also clear that he intended to treat her differently. I am unable to interpret paragraph 3(j) (ii) as the Strafford-Bliss Estate urges me to do and conclude that Dr.

Strafford had any intention to hand over to Ms. Strafford-Bliss a one-eighth share of the residue when he died. [ 48 ] Dr. Strafford used the words “to pay or transfer one such share to” in describing what was to happen with the shares of the residue intended for his children in the first sentence of paragraph 3(j)(ii) of the Will. But the first sentence of the paragraph cannot be read separately from the second. In the second sentence, Dr. Strafford was more specific about what Ms. Strafford-Bliss was to receive. He described the share “to be transferred to” Ms. Strafford-Bliss using a future tense.

He then asked that it “be used to purchase an annuity”, which I find to be an expression of his intention that the money be used by the Trustee for that purpose with the effect of “giving” Ms. Strafford-Bliss the monthly income he sought to provide for her. [ 49 ] Given his education and business experience, it is not unreasonable to accept that Dr. Strafford understood that central to the concept of an annuity is the alienation of capital and to conclude that what he had in mind in directing the purchase of an annuity to give Ms.

Strafford-Bliss at least $3500 per month, indexed for inflation, was the purchase of a form of annuity that could not be cashed in by Ms. Strafford-Bliss or transferred to someone else in exchange for a lump sum. [ 50 ] In other words, informed by the facts as I have found them, I read all of the words used in paragraph 3(j)(ii) in the context of the Will as a whole and find that what Dr. Strafford intended was, in effect, to allocate a one-eighth share of the residue for the purchase of a non-commutable, non-assignable annuity for Ms.

Strafford-Bliss that would limit what she received to a minimum monthly income for her life. He sought to avoid Ms. Strafford-Bliss obtaining any control of a lump sum because he feared the money would be mismanaged and lost. [ 51 ] There is no suggestion in the language of the Will that Dr. Strafford intended Ms. Strafford-Bliss to receive monthly payments for less than her lifetime. The Strafford-Bliss Estate does not argue otherwise. [ 52 ] I have considered the language of paragraph 3(j)(iii) in reaching this conclusion. Had Ms. Strafford-Bliss pre-deceased Dr.

Strafford, the Trustee would no doubt have faced a challenge, upon Dr. Strafford’s death, in trying to determine what “share” was intended for the Strafford-Bliss Estate based upon what Ms. Strafford-Bliss would have received “if alive”. But, even if it is assumed that

the “share” referred to in this paragraph of the Will was intended by Dr. Strafford to be one-eighth of the residue of his estate, it does notnecessarily follow that the Strafford-Bliss Estate is entitled to the same “share” in the circumstances that actually unfolded. [53] It is not clear from the evidence what specific thoughts Dr. Strafford had about what would happen to the share of the residueintended to benefit Ms. Strafford-Bliss in the event she pre-deceased him. She was not in a relationship at the time he was making hisWill and, from Dr.

Strafford’s perspective, was struggling to reasonably manage her affairs. From this evidence, I might infer that Dr.Strafford believed his daughter’s estate would likely pass on intestacy to her siblings. This outcome would be consistent with the overallaim and structure of his Will to leave a legacy for family and the Brenda Strafford Foundation, and his intention to keep a lump sum outof Ms. Strafford-Bliss’ hands. From a practical perspective, there was also the possibility, should Ms. Strafford-Bliss pre-decease him,that Dr.

Strafford could change his Will before he died. [54] At the same time, I cannot ignore the evidence that Dr. Strafford was prepared to “get rid of the money” to try to protect Ms.Strafford-Bliss. From this evidence, I can infer that Dr. Strafford was content, if Ms. Strafford-Bliss pre-deceased him, for a share of theresidue of the Strafford Estate to pass to the Strafford-Bliss Estate no matter where the money ended up. It is difficult to read thelanguage of paragraph 3(j)(iii) as meaning something different than this. [55] Either way, what Dr. Strafford intended in a scenario in which Ms.

Strafford-Bliss pre-deceased him cannot frustrate what heintended by paragraph 3(j)(ii) of the Will to address a very different scenario in which Ms. Strafford-Bliss survived him. What effect does Ms. Strafford-Bliss’ death have on the gift of income intended forher? [56] The Strafford Estate relies upon the fact that Ms. Strafford-Bliss had to be alive both for the Trustee to purchase the annuityand to receive the income intended for her. It says her death frustrated the Trustee’s ability to carry out Dr. Strafford’s wishes andbrought her interest in the Strafford Estate to an end.

In these circumstances, the Strafford Estate argues, the gift intended for Ms.Strafford-Bliss cannot pass to her estate. [57] The Strafford-Bliss Estate urges me to rely upon Robbins v Legge, [1907] 2 Ch 8 (CA) and certain cases that have followed itto conclude that, notwithstanding Dr. Strafford’s intention to keep a lump sum out of Ms. Strafford-Bliss’ hands, she had an absoluteinterest in both the annuity income, and its value in cash, that vested when Dr.

Strafford died and the Condition of Survival was met.Therefore, it says, it is entitled to the sum that would have been used to purchase the annuity. [58] In Robbins, the testator directed his trustees to pay his debts and then purchase a Government annuity in the name of his wifeto provide a specified annual income for her during her life. The wife survived the testator, but died before the will was proved or thedebts paid.

The testator’s estate argued that because the annuity could not be purchased after the death of the proposed annuitant, the gifthad failed. [59] The Court of Appeal reasoned at page 12 that “it [was] difficult to see how any distinction [could] fairly be drawn between agift of a definite sum to purchase an annuity and a gift of so much money as is required to purchase a definite annuity.” On that basis, theCourt held that the annuity, and the right to take its value in cash instead of the annual payment, vested in the wife upon the testator’sdeath.

The wife’s estate was therefore entitled to the sum that would, at the date of the testator’s death, have been required to purchasethe annuity. [60] The conclusion reached by the Court of Appeal in Robbins has been referred to as a “general rule” that: 1) where a will directsan annuity to be purchased, the annuitant has a right to take its value in cash or to take the monthly or annual sums; and, 2) should theproposed annuitant die before the annuity is purchased, his or her legal representatives are entitled to the sum that would have purchasedthe annuity: Armstrong v Garnett [1955] DLR 521 (SKQB) at para 11.

See also Carmen S.

Theriault, Widdifield on Executors and Trustees, 6th ed. (2002, ThomsonCarswell) where the author states at 5-32.9 “[t]his is on the ground that the annuity is in the nature of alegacy and becomes vested at the death of the testator, and the subsequent death of the annuitant is immaterial.” [61] However, it is important to recognize for the purposes of resolving the dispute between the Strafford and Strafford-BlissEstates, that the Court in Robbins relied upon Dawson v Hearn, 39 ER 232, where the Court said the following, affirmed on appeal: There is no difference in equity between the gift of a sum certain, to be invested in the purchase of an annuity, and the direction that, at agiven time, a Government annuity of a certain amount is to be purchased.

The amount of both gifts is equally certain; and this Court hasconsidered it to be equivalent to a personal legacy of a certain sum of money, because, when purchased, the annuitant may immediatelysell the annuity. [Emphasis added.] [62] The challenge faced by the Strafford-Bliss Estate is that if Dr. Strafford’s intention (that a non-commutable, non-assignableannuity be purchased for Ms. Strafford-Bliss) is honoured, it cannot be said that Ms. Strafford-Bliss could immediately sell the annuityintended for her.

This means that the rationale underlying the analysis in Dawson and in Robbins falls away and the reasoning in thesecases that an interest in the value of the annuity vests does not apply. [63] This was the result in Jensen et al v Wutzky (SK CA), [1947] 1 DLR 66, where the Saskatchewan Court ofAppeal held at para 7 that “it was the intention of the testator that the appellant [beneficiary] should be assured of some income for theremainder of her lifetime, instead of being given a lump sum, which might be improvidently used.” The Court of Appeal consideredwhether Robbins and the cases that followed compelled it to frustrate this intention.

Noting at para 20 that “... every judgment must beread as applicable to the particular facts proved or assumed to be proved ...” and at para 19 that “... the [rationale] of the cases referred to,which runs through all the English cases dealing with the purchase of annuities, can have no application to the purchase of a Governmentannuity [inalienable by law], or an annuity similar thereto...”, the Court of Appeal concluded that the reasoning in Robbins did not apply. [64] Similarly, in each of Re Schumacher (1971), (MB CA), 20 DLR (3d) 487 (MBCA), affirmed (1973), 1973

Estate v Saskatchewan Council for Crippled Children and Adults (1985), (SK SU), 41 Sask R 77 (Surr Ct), thecourts found no intention on the part of the testator to pay or transfer anything but income, with the result that the beneficiaries were notentitled to take possession of the corpus or capital. [65] The Strafford-Bliss Estate referred to cases in which courts have followed the Robbins approach despite testator intentionsthat would appear to make Robbins distinguishable: Lotzkar v McLean (1979), (BC SC), 15 BCLR 259; Ker Estate vStevenson, 2009 ONCA 345.

Read carefully, however, it is evident that the decisions in these cases were informed, at least in part, bythe discretion granted the trustees. [66] Although the testators in each of these cases expressed an intention that the proposed annuitant be prohibited from taking thevalue of the annuity in lieu of the income payments, they also granted their trustees broad discretion to purchase annuities as theydeemed advisable.

The courts seem to have determined that, in these circumstances, where the trustees had discretion to purchaseannuities that might be commutable and/or transferable, the language imposing the restriction was invalid in the absence of a gift over.The reasons were premised on the principle that a testator cannot give a gift and then impose a condition that prevents the recipient fromenjoying it (i.e., denying them the right to use the thing as they would legally be entitled to do).

In the eyes of the law, such a condition is repugnant: see James MacKenzie, Feeney’s Canadian Law of Wills, 4th ed (Toronto: LexisNexis, 2000) and Albert H. Oosterhoff, C. David Freedman, Mitchell Mcinnis and Adam Parachin, Oosterhoff on Wills, 8th ed (Toronto: Thomson Reuters Canada Ltd, 2016), at18.3.7. [67] The will in Lotzkar provided: (

v) Upon the death of my said wife, or if she shall predecease me then upon my death, I Direct my Trustees to divide all the rest andresidue of my said estate into two equal shares for my children Joseph Lotzkar and Louise Kettleman, and I Further Direct my Trusteesto use the whole of each of such said shares for the purchase of two (2) life annuities, one for each of my said two children, JosephLotzkar and Louise Kettleman, for the life of each said child and I give my Trustees absolute discretion to purchase such annuities fromthe Government of Canada or any life assurance company as they may deem advisable and I Declare that each of my said childrenJoseph Lotzkar and Louise Kettleman, shall not be allowed to have the value of such said life annuity in lieu thereof. … [Emphasisadded.] (vii) In The Further Event that any of my said children shall be living at my death and thereafter die before all the benefits from suchAnnuity so purchased for him or her have been paid to him or her as the case may be, I Direct my Trustees To Pay And Transfer Oversuch remaining benefit to the issue of such child of mine upon such issue thereof attaining the age of twenty-one (21) years (and if morethan one equally between them). [68] The children in Lotzkar were two of the three trustees and moved for directions requesting that each of them be paid a lumpsum in lieu of the life annuities.

The main issue addressed by the chambers judge was “... whether or not Joseph Lotzkar and LouiseKettleman each have absolute beneficial interests and, if so, are the trustees bound to pay lump sums to each of them in lieu of theannuities if they so request”: at para 3. [69] The chambers judge noted at para 4 that: .. since the trustees [were] given in (v) “absolute discretion to purchase such annuities from either the Government of Canada or any lifeassurance company as they may deem advisable...”, the trustees should indicate to the court the manner in which they wish to exercisetheir discretion, so that the ruling can be based on a concrete proposal rather than on hypothetical possibilities.

The trustees took thissuggestion and ... made a concrete proposal upon which they ask[ed] for a ruling. [70] The Court went on to say at paras 5-8: One of the trustees is a corporation and the remaining two are the annuitants Joseph Lotzkar and Louise Kettleman.

Part of Clause 1which appoints the executors and trustees, reads as follows: … and should any difference of opinion at any time exist between the Trustees for the time being of this my Will in relation to thecommission or omission of any act or the exercise of any discretion or otherwise howsoever in the execution of the trusts of this my Willor any Codicil thereto, I Direct that the opinion of the majority of such Trustees shall prevail notwithstanding that any one or more ofsuch Trustees may be personally interested or concerned in the matter of dispute or question.

The proposal made by the two personal trustees is that each of them be paid outright in lieu of the life annuities. The corporate executorswill go along with this proposal if it is acceptable to the Court. The proposal also makes the point that if the court finds that the trustees are not obliged to pay out the money in lieu of the annuities thetwo personal trustees would exercise their discretion to purchase:

a) single premium immediate Life Annuities;

b) payments to terminate with the last annuity payment made prior to the death of the Annuitant;

c) from a life assurance company;

d) the contract to be in the name of the Annuitant as owner;

e) the contract to be assignable.

There was some discussion before me as to the range of the trustees’ discretion. Does it extend only to the choice as between agovernment of Canada annuity, as opposed to one from a life insurance company, or is it broader, extending also to the type of annuity? Ihold that it is of the broader kind in that the words “as they may deem advisable” qualify “such annuities”. The message is that thetrustees have absolute discretion to purchase such annuities as they may deem advisable from the government of Canada or any lifeinsurance company.

The discretion could not be wider and it is untrammeled by any conflict of interest problem because of the quotedlanguage in clause 1.

They are free to buy any kind of life annuity available. [71] It was against this factual backdrop and the broad discretion afforded the trustees by the language of the will that thechambers judge in Lotzkar stated at paras 9-11: Most of the relevant law is concisely expressed in the following short extract from p. 1109 of Jarman on Wills, 7th ed.: (vii) Sum given to buy Annuity — Where there is a bequest of a sum of money to buy an annuity, the annuitant is entitled to have themoney, because the annuity might at once be sold, and it would be idle to compel the annuitant to have an annuity which he could resell;this is the case even where the testator shows clearly that he means the annuity to be held by trustees as a personal provision for theannuitant, or even where he expressly declares that the annuitant shall not be allowed to accept the value of the annuity in lieu thereof, orthat it shall cease on alienation, unless such a condition is made effective by a gift over.

All of these principles are buttressed by English authorities footnoted in Jarman and they have been adopted in Canada many times withone principal variation, which is that if the direction is to buy a government of Canada annuity then the annuitant cannot have the moneybecause the Government Annuities Act, R.S.C. 132, s. 1 at s. 10(1) makes the property in any annuity issued thereunder or the benefitsarising therefrom inalienable.

In re Boxall Estate (1946) (SK CA), 3 W.W.R. 413 While on the subject of government of Canada annuities it is common ground that such an annuity could not be purchased by the trusteeshere in any event as a mode of exercising their discretion ... because the amounts involved are far too large. ...

The only impediment which might stand in the way of the annuitants taking lump sums is the possibility of a valid gift over to the issue.This impediment could make effective the testator’s stated wish that the annuitants “shall not be allowed to have the value of such saidlife annuity in lieu thereof.” [72] The same passage quoted by the chambers judge in Lotzkar appears in Jarman on Wills, 8th ed., Vol. 2 (London: Sweet andMaxwell, 1951). A footnote omitted from the quote in the Lotzkar case states: ...

A direction to set aside a fund to secure an annuity does not give the annuitant the right to have the value of the annuity paid to him:Wright v Callender, 2 D. M. & G. 652 ... [In contrast, a] discretionary power to invest a sum in the purchase of an annuity authorises thetrustees to pay the sum to the annuitant: Messeena v Carr, L.

R. 9 Eq. 260. [73] In Ker Estate, the Ontario Court of Appeal accepted that Robbins was the governing authority on facts similar to those inLotzkar. [74] The will in Ker Estate provided that the residue was to be divided into ten equal parts and that: Five (5) of such equal parts shall be used to purchase a non-commutable life annuity from an insurance company payable to my daughter,Andrea Helen Stevenson, all matters in connection with this purchase to be in the discretion of my Trustees.

Upon the death of my saiddaughter, or upon my death if she has predeceased me, the parts, or the balance then remaining shall be used to purchase a non-commutable life annuity from an insurance company payable to my grandson, Jesse Stevenson, all matters in connection with thispurchase to be in the discretion of my Trustees. [Emphasis added.] [75] Before the annuity was purchased, the trustees of the estate were served with a notice of garnishment directing them to pay“all debts now payable by you to the debtor(s) [Andrea Stevenson] ...”. [76] The trustees filed a motion seeking direction from the court about whether the capital of Andrea Stevenson’s share of theestate could be encroached upon to satisfy the requirements of the notice of garnishment.

The chambers judge held that the capital forthe benefit of Andrea Stevenson had vested in her upon the death of the testator and was available to make the payments sought. [77] Jesse Stevenson appealed the decision. [78] In arguing that the motions judge had erred in finding that an interest in the capital to be used to purchase the annuity vestedupon the testator’s death, the appellant tried to distinguish Robbins on the basis that the annuity in Robbins was commutable and that “inmore modern times, the courts [had] taken notice of non-commutable annuities and their utility in structured settlements.” [79] The Ontario Court of Appeal found at para 16 that “such a development” did not advance “the argument in this case on eitherside.” [80] Rather, at paras 21-23, the Court of Appeal discussed Lotzkar and noted at the conclusion of para 23 that in that case, “... thetrustees’ discretion was absolute and permitted them to purchase an annuity from a life assurance company ...”.

The Court of Appeal referred briefly to: John G. Ross Martyn, Stuart Bridge & Mike Didham, Theobald on Wills, 16th ed (London: Butterworths, 2002) and C.H. Sherrin et al, Williams on Wills, 8th ed (London: Butterworths, 2002) before concluding that Robbins governed the facts of thecase. [81] Because Dr. Strafford’s Will did not grant the Trustee broad discretion in relation to the purchase of the annuity for Ms.Strafford-Bliss, and because I have found from the language of the Will and admissible evidence that Dr. Strafford’s intention was to

confine what Ms. Strafford-Bliss received to a monthly income for as long as she lived, I find the facts of this case are distinguishable from those in Lotzkar and Ker Estate . [ 82 ] As Ms. Jenner explained during her expert testimony, an annuity that provides an income to a designated annuitant for his or her lifetime is purchased based upon the life expectancy of the annuitant. It may be purchased on a non-commutable, non-assignable basis to prevent the annuitant from: 1) taking the cash value of the annuity instead of the monthly payments; and/or 2) assigning the contract in exchange for money.

The annuity can be purchased only while the annuitant is living. Subject to any guaranteed payment period or principal protection option in the annuity contract (which terms increase the price of the annuity and can lower the benefit payable to the annuitant while alive), the payments end upon the death of the annuitant. [ 83 ] Had an annuity been purchased, Ms. Sissons would have had to determine whether to include a guaranteed payment period or principal protection option. A life annuity without these terms would ensure the maximum benefit was available for Ms.

Strafford-Bliss and would be most consistent with Dr. Strafford’s aim to provide security of income for Ms. Strafford-Bliss by getting rid of the money. In any event, Ms. Sissons’ evidence is that she would not have named the Strafford-Bliss Estate as the beneficiary of these optional terms. The Will would not, in my view, have required her to do so. On the contrary, if such terms were to be included in the annuity contract, naming the Brenda Strafford Foundation as the beneficiary would be most consistent with Dr. Strafford’s intentions. [ 84 ] Dr.

Strafford allocated a share of the residue for the purchase of an annuity, but did not give Ms. Strafford-Bliss an absolute interest in that share of the residue; this was not a circumstance in which I find the Trustee was authorized to give or Ms. Strafford-Bliss was authorized to take that share in a lump sum. There is, in the result, nothing repugnant in finding that the Strafford-Bliss Estate has no entitlement to the sum that would have purchased the annuity. [ 85 ] Instead, I find that the only interest that possibly could have vested in Ms. Strafford-Bliss when Dr.

Strafford died and the Condition of Survival was met was an interest in the income that a non-commutable, non-assignable annuity would provide during her lifetime. [ 86 ] I pause to note that even if the gift the Strafford-Bliss Estate urged me to find vested in Ms. Strafford-Bliss, the Strafford-Bliss Estate did not address the possibility that the gift was subject to divestiture in the circumstances as they subsequently unfolded. Given my analysis and conclusion as set out above, I need not consider this issue. Is the Strafford-Bliss Estate entitled to receive anything from the Strafford Estate? [ 87 ] Ms.

Strafford-Bliss’ untimely passing on August 31, 2016 made it impossible for the Trustee to purchase the annuity. It is therefore arguable that the gift intended for Ms. Strafford-Bliss fails and that the Strafford-Bliss Estate is entitled to nothing. [ 88 ] However, Ms. Sissons deposed that, before the Grant of Probate could be obtained, and in an effort to meet Ms. Strafford- Bliss’ immediate needs and to ensure that Dr. Strafford’s intentions were honoured, she paid Ms. Strafford-Bliss $3500 in each of May and June 2016. No payments were made to Ms. Strafford-Bliss in July or August because Ms.

Sissons understood Ms. Strafford-Bliss had a GIC maturing and did not need to receive those payments at that time. [ 89 ] In these circumstances, I conclude that it would not be inconsistent with Dr.

Strafford’s intentions that the Strafford-Bliss Estate retain the payment of $7000 made by the Trustee. [ 90 ] There is one final argument I must address. [ 91 ] The Strafford Estate argued that, in the event I found the Strafford-Bliss Estate was to receive something from the Strafford Estate, I should nonetheless bar recovery under the maxim of the common law ex turpi causa non oritur action , or “out of an illegal or immoral consideration, an action cannot arise:” Jaworenko v Amthor , 2013 ABQB 517 at para 14 .

This argument is born out of the heartache, anger and suspicion that often mark cases like this. [ 92 ] Ms. Sissons and Ms. Strafford perceive that the position taken by the Strafford-Bliss Estate is an unfair attempt by Ms. Ledene-Fraser to thwart their father’s intended legacy for her personal benefit. Ms. Ledene-Fraser acknowledges that she is the person likely to benefit from the Strafford-Bliss Estate. The resentment Ms. Sissons and Ms. Strafford feel toward Ms. Ledene-Fraser is aggravated by the fact that Ms. Ledene-Fraser knew Ms. Strafford-Bliss had illegally purchased oxycontin two days before her death.

Ms. Sissons and Ms. Strafford believe that, armed with this knowledge, Ms. Ledene-Fraser could, and should, have done something to stop Ms. Strafford-Bliss from overdosing. Because Ms. Ledene-Fraser did not do so, the Strafford Estate says she should not be entitled to receive a benefit from the Strafford-Bliss Estate. [ 93 ] While I can appreciate the distress felt by family members (on both sides) about the way Ms. Strafford-Bliss died, I do not accept the assertion that Ms. Ledene-Fraser could have prevented what happened. Ms. Strafford-Bliss had long taken oxycontin.

When she did not have access through a prescription from her doctor, Ms. Strafford-Bliss stole pills from Mr. Bliss, who also took the medication. Ms. Ledene-Fraser testified that she had a conversation with Ms. Strafford-Bliss after she illegally purchased the oxycontin during which Ms. Ledene-Fraser reminded Ms. Strafford-Bliss that her doctor was trying to cut her back and told her that she should not take the pills. Ms. Ledene-Fraser did not think, and had no reason to believe, that Ms. Strafford-Bliss would take as many pills as she did at one time. I have no evidence that Ms.

Strafford-Bliss had ever used the drugs she had access to in a way that would kill her. [ 94 ] Ms. Strafford-Bliss’ death was tragic, but none of the litigants involved in this case is to blame. Conclusion [ 95 ] Dr. Strafford’s intention was to provide Ms. Strafford-Bliss with only an income during her lifetime. The Strafford-Bliss Estate is not entitled to the sum that would have purchased an annuity for Ms. Strafford-Bliss. However, I find that it is consistent with

Dr. Strafford’s intention that the Strafford-Bliss Estate be permitted to retain the $7,000 paid to Ms. Strafford-Bliss by the Trustee for the months of May and June 2016. [ 96 ] If the parties are unable to agree, they may make arrangement to speak to costs. [ 97 ] If required, the Trustee of the Strafford Estate also may seek advice and direction from the Court in relation to how the unused share of the residue allocated for the purchase of an annuity for Ms. Strafford-Bliss is to be distributed. Heard on March 29, 30 and 31 and April 1 st , 2021.

Dated at the City of Calgary, Alberta this 28 th day of May, 2021. Anne L. Kirker J.C.Q.B.A. Appearances: Jared Kantor for the Applicant, Roxanne Sissons, Personal Representative of the Estate of Barrie I. Strafford Grant N. Van Hal and Kevin Ronan for the Respondent, Patricia Ledene-Fraser, Personal Representative of the Estate of Sheree Anne Strafford-Bliss