Burness Estate (Re), 2021 ABQB 980

Court of Queen’s Bench of Alberta Citation: Burness Estate (Re), 2021 ABQB 980 Date: 20211209 Docket: ES03 148915 Registry: Edmonton Court File Number ES03 148915 Court Court of Queen’s Bench of Alberta (Surrogate Matter) Judicial Centre Edmonton Estate Name William Henry Burness Applicant William George Burness Respondent Aileen Margarite Burness by her Power of Attorney Meegan Ball Personal Representatives Bonnie Mae Burness Florkowsky and Andrea Jacinta Maureen Ball _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice B.R.

Burrows _______________________________________________________ [ 1 ] William George Burness applies for an order dismissing a maintenance and support application brought by Aileen Margarite Burness. William George Burness is one of the residual beneficiaries of William Henry Burness’ Estate. [ 2 ] William Henry Burness died on April 8, 2017. He was survived by his second wife, Aileen Margarite Burness, and by four adult children who were the children of William Henry Burness and his first wife, Mabel Marie Burness, who died in 1981.

One of those surviving children is the Applicant, William George Burness. [ 3 ] William Henry Burness’ will provided in paragraph 4(

b) Life Estate: To allow my wife during her lifetime, the use, occupation and enjoyment of whatever dwelling, house or residence she may designate and I or my wife and I may own at my death. All taxes, insurance, mortgage interest and repairs, shall be paid by my wife, as her contribution for the use and enjoyment of such dwelling, house or residence. If during any period my wife must be place ( sic) in a care facility, I direct that such residence be sold at ( sic ) that the proceeds shall be held by my Trustees and my wife shall during such period, be entitled to the income thereof. Subject to the interest of my wife, any such dwelling, house or residence held by my

Trustees under the terms of this paragraph and proceeds of the sale of such dwelling, house or residence shall be divided equally amongmy children, Margaret Loraine Burness Lampitt, Connie Marie Burness, Bonnie Mae Burness Florkowsky and William George Burness. [4] The provision did not contemplate any encroachment on the capital in which Ms. Burness would have a life estate if thehouse was sold, should the cost of her care exceed the income earned by that capital. There was no other gift or legacy for Ms.

Burnessin the will. [5] The Inventory of Property and Debts which formed part of the Application for Probate indicated that the net value of theestate was $367,436.71. The major estate asset was what appears to have been a residence in Sherwood Park, Alberta which wasassigned a value of $340,000 in the Inventory. I assume that this is the only asset which the surviving wife, Ms. Burness, could havedesignated as contemplated in the first sentence of the provision of the will quoted above. [6] The evidence indicates that after William Henry Burness died, Ms.

Burness continued to live in the residence which he hadowned until her health deteriorated to the point where she needed to move to a seniors’ care facility. As I understand the evidence sheceased living in the residence in which she had a life estate as of July 2017. [7] On November 9, 2017, Ms. Burness brought an application seeking from the William Henry Burness estate:

a) Reimbursement of expenses she paid for the maintenance of the house following Mr. Burness’ death.

b) A declaration that Mr. Burness did not make adequate provision for her proper maintenance and support.

c) An order making adequate provision for her maintenance and support from the estate by payment of her expenses to the date of thehearing of her application and $7000 per month for future care costs.

d) An order that “the past and future care costs of the Applicant [Aileen Margarite Burness] including that of volunteers be paid orreimbursed from the Estate. [8] In items “b” and “c” in this list, Ms. Burness appears clearly to have sought maintenance and support as contemplated byDivision 2 of the Wills and Succession Act, RSA W-12.2, s. 88. [9] The order sought in “a” might not be in relation to a maintenance and support application. It could be a claim in debt orrestitution.

I expect the issue would be whether the above quoted provision in the will effectively imposed the obligation to pay theexpenses mentioned in “a” on Ms. Burness. [10] The foundation for the remedy described in “d” is not clear. It may be interpreted as a claim made on behalf of Ms. Burnessand others for reimbursement of payments they have made on behalf of the estate – so also restitutionary entitlements – at least in so faras they relate to past payments. How the Estate would have an obligation to pay for the care costs of Ms.

Burness, other than by way ofan order in a maintenance and support application is not obvious. [11] The evidence does not clearly indicate whether or not the house in which Ms. Burness had a life interest was thereafter sold or,if so, for what value. The affidavits on the Court file for this proceeding indicate that at one point the house was put on the market andan offer of $305,000 was accepted with a closing of November 17, 2017. I cannot, however, find any indication in the evidence whetheror not the closing occurred. [12] Assuming the sale closed, as of November 17, 2017, by the terms of the Will, Ms.

Burness’ life interest in the residencebecame a life interest in the income from the proceeds of sale of the residence – the income from about $305,000. There is no evidenceas to what that income has been, or whether Ms. Burness ever received that income. The relief claimed in Ms. Burness’ application doesnot appear to include an order that she be paid the income earned by the capital in which she had a life estate. [13] Ms. Burness died on August 27, 2019. [14] As noted, William George Burness, seeks a dismissal of Ms.

Burness’ application on the basis that an application formaintenance and support made pursuant to Division 2 of the Wills and Succession Act does not survive the applicant. [15] In support of his application William George Burness relies on Re McMaster (1957) (AB KB), 10 D.L.R.(2d) 436 where Egbert J of the Alberta Supreme Court considered whether an application under Testators Family Maintenance Act, S.A.1947, c 12, survived for the benefit of the estate of a person who would have been entitled under that Act but who had died.

Thelegislation considered in McMaster is a precursor of the present Division 2 of the Wills and Succession Act. [16] Egbert J. held that the widow’s application did not survive her death – it could not be continued for the benefit of her estate. He observed that on the facts before him the widow would very likely have been entitled to an order for maintenance and support fromher husband’s estate had she lived.

He noted that the legislative provisions under which the application had been brought confered theright to apply for an order altering the testator’s disposition of his estate upon a “dependant”, which, he said, must “mean a livingdependant, since no need for support can exist if the dependant is not living.” [17] Egbert J., in dismissing the application of the widow’s personal representative, further held: (page 441) The controlling

section of the Act . . . which confers jurisdiction upon the Court, clearly indicates that the discretionary jurisdiction isconferred only for the purpose of enabling the Court to make adequate provision for the maintenance and support of a dependant.

If adependant dies before such provision is made, the result is that not only the need for maintenance and support disappears, but thedependant also disappears and there is not only no need for maintenance and support (on the existence of which depends the Court’sjurisdiction) but no person in whose favour any provisions could be made. . . . [T]he Act, derogating as it does from the will-makingpower of a testator, must be construed strictly, and since there is nowhere in the Act any provision or suggestion of a provision that any

right devolves upon the personal representative of a deceased dependant, no such provision should be read into the Act, and the rightmust be confined to those persons on whom it is clearly bestowed by the Act, i.e. “dependants” who in light of the purpose and intent ofthe Act must be construed as living dependants. [18] Egbert J. also discussed what appears to me to be the main, if not the only, judicial expression of an opposing view. This wasthe decision of O’Halloran JA of the BCCA in Barker v. Westminster Trust Co. (BC CA), [1941] 4 D.L.R. 514.

Thatjudgment was the only one of the three judgments rendered in the BCCA that held that the dependant’s right to seek maintenance andsupport when the testator had made inadequate provision for it survived the death of the dependant and passed to the dependant’s estate.

McDonald JA was in complete disagreement with O’Halloran JA and Sloan JA decided the appeal on an different basis. [19] In McMaster Egbert J. considered the judgment of O’Halloran JA and said: (page 438) The views of O’Halloran JA seem to rest chiefly upon his belief that by the statute there is conferred on and vested in the dependant astatutory right, and imposed on the deceased a statutory duty to provide adequately proper maintenance and support. Egbert J. noted that such a view was inconsistent with the decision of the Privy Council in Dillon v.

New Zealand Public Trustee (UK JCPC), [1941] A.C. 294 where it was held that the New Zealand statute on this subject, which Egbert J. noted wassimilar to the Alberta statute: . . . did not impose any duty on a testator to frame a will in any particular way and that a testator does not fail to observe any statutoryduty by failing to make adequate provision for the proper support and maintenance of a dependant; that all the statute does is to confer onthe Court discretionary jurisdiction to amend the provisions of the will by ordering additional provision for dependants; that the willmaking power remains in tact and no legal duty is offended against when adequate provision is not made. [20] Egbert J. also considered and agreed with a decision of the Saskatchewan Court of Appeal, Re Smith, Wetzel v.

Nat’l TrustCo. (1956) (SK CA), 4 D.L.R. (2d) 171. As to this case, Egbert J. noted: The Court pointed out . . . that the Act creates no vested interest in any dependent – merely a right to apply for maintenance whenreasonable provisions therefor are not made.

Since the purpose of the Act is not to assist a dependant in building up an estate, but has asits sole object the provision of adequate maintenance, it can only be invoked by a living dependant. [21] Counsel did not refer me to any Alberta case which has rejected the reasoning of Egbert J. in McMaster in the 64 years sinceit was expressed, and I have found none myself. [22] Ms.

Swartzenberger submitted that the reasoning of Egbert J. in McMaster should not be applied in the present case becausethe statutory provisions under which the dependant’s application was made in each case are different. [23] The relevant provision in McMaster was the Testators Family Maintenance Act, 1947 c 12 s 4(1): Where a testator dies leaving a will and without make order for adequate making therein adequate provision for the proper maintenanceand support of his dependants or any of them, a judge on application by or on behalf of the dependants or any of them may in hisdiscretion order that such provision as he deems adequate shall be made out of the estate of the testator for the proper maintenance andsupport of the dependants or any of them. [24] The relevant provision in this case is the Wills and Succession Act, RSA 2010, c W-12.2 s 88(1): If a person . . . (

a) dies without making adequate provision in the person’s will for the proper maintenance and support of a familymember, . . . the Court may, on application, order that any provision the Court considers adequate be made out of the deceased’s estatefor the proper maintenance and support of the family member. [25] I cannot see that there is any difference between these two sections which would make Egbert J.’s reasoning inapplicable tothese proceedings. [26] I agree with the reasoning expressed by Egbert J. in McMaster. I dismiss the application made on behalf of Ms.

Burness formaintenance and support on the basis that because of her death there can no longer be any need for the Court to exercise the jurisdictiongranted by the WSA s. 88(1). I find that any right to seek an order under the

section that existed between the time of the death of Mr.Burness and the time of the death of Ms. Burness did not survive Ms. Burness and therefore cannot be pursued for the benefit of herestate. [27] I note that Ms. Belzil also submitted that Meegan Ball, Ms. Burness’ daughter, did not have authority to continue Ms.Burness’ application in her capacity as Attorney for Ms. Burness as her authority in that capacity would have ended with the death of Ms.Burness. I find it unnecessary to deal with that submission. [28] I also note that it may be that the relief sought in the application made on behalf of Ms.

Burness includes claims in debt orrestitution, that is claims not founded on WSA s. 88(1). (See paragraphs [9] and [10] above.) If so, this decision does not affect thoseclaims. I express no view as to the viability of such claims in a proceeding of this nature. Heard on the 2nd day of December, 2021. Dated at the City of Edmonton, Alberta this 9th day of December, 2021.

B.R. Burrows J.C.Q.B.A. Appearances: Francoise H. Belzil for the Applicant Karen D. Swartzenberger for the Respondent