Maruzs Estate (Re), 2023 ABKB 247

Court of King’s Bench of Alberta Citation: Maruzs Estate (Re), 2023 ABKB 247 Date: 20230427 Docket: ES02 07406 Registry: Drumheller Court File Number ES02 07406 Court Court of King’s Bench of Alberta (Surrogate Matter) Judicial Centre Drumheller Estate Name Dorothy Suzanne Maruzs Applicant Sandra Lee Schneider Respondents Gerald Homenick, Ericka Rae Anderson and Logan Vincent Maruzs _______________________________________________________ Reasons for Judgment of the Honourable Justice D.B. Nixon _______________________________________________________ I.

Introduction [ 1 ] This application (the “ Application ”) concerns the Estate of Dorothy Suzanne Maruzs (the “ Maruzs Estate ”). The only issue before me is the

interpretation of the will of the deceased. [ 2 ] The dispute is who will inherit certain real property. The debate is whether certain farmland will pass to the descendants of a

deceased son or whether the residual clause in the will captures the subject real property so that it is allocated to the surviving daughters of the deceased mother. II. Facts [ 3 ] Dorothy Suzanne Maruzs died testate on July 11, 2021 (the “ Deceased ”). She was 83 at the time of her death. [ 4 ] The husband of the Deceased predeceased her in 2003. She never remarried or entered into an Adult Interdependent Relationship after her husband died. [ 5 ] The Deceased had four children: (

i) Vincent Clifford Maruzs (“ Vincent ”); (ii) Ms. Sandra Lee Schneider (“ Sandra ”); (iii) Karen Marie Wells (“ Karen ”); and (iv) Kimberly Suzanne Stuckless (“ Kimberly ”). The surviving children are all are adults, and none are incapacitated. [ 6 ] The Deceased signed her Last Will and Testament on January 12, 2016 (the “ 2016 Will ”). [ 7 ] The Applicant is Sandra. Sandra is a 1/3 alternate residual beneficiary under the 2016 Will. [ 8 ] The other alternate residual beneficiaries are Sandra’s sisters. They are not represented before the Court. [ 9 ] The Respondents are: (

i) two of the adult grandchildren of the Deceased, being Logan Vincent Maruzs (“ Logan ”) and Ericka Rae Anderson (“ Ericka ”); and (ii) the Personal Representative of the Maruzs Estate, being Gerald Homenick (collectively, the “ Respondents ”). [ 10 ] The Deceased was 78 years old when the 2016 Will was drafted. It was prepared by her long-time solicitor, Mr. William A. Herman of Drumheller. [ 11 ] The Deceased had grandchildren from each of her children. All are adults. None of the grandchildren were dependent on their grandmother. None are incapacitated. [ 12 ] Vincent died on April 3, 2021.

Logan and Ericka are the two surviving adult children of Vincent. [ 13 ] At the time of her death, the Deceased owned six parcels of farmland (collectively, the “ Maruzs Farmland ”). The value of the Maruzs Farmland in the application for grant of probate was stated to be $3,164,238, but there is no formal valuation of that real property. There are no mortgages on the Maruzs Farmland. [ 14 ] The Maruzs Farmland is the largest part of the Maruzs Estate. The other assets in the Maruzs Estate amount to $196,495.76.

The only debt of the Maruzs Estate were the funeral expenses in the amount of $11,262.92. [ 15 ] The 2016 Will sets out a series of specific gifts to the Deceased’s children. The three daughters were each bequeathed a specified amount of money. Vincent was bequeathed the Maruzs Farmland. [ 16 ] There were no alternates named in the 2016 Will for any of the specific gifts in the clauses that bequeathed the funds to the daughters or the Maruzs Farmland to Vincent. The residue of the Maruzs Estate was given in first instance to Vincent.

As mentioned above, the alternate residual beneficiaries are the three daughters of the Deceased. [ 17 ] In June 2015, the Deceased placed all of the Maruzs Farmland into joint tenancy with Vincent. [ 18 ] At or about the time the joint tenancy was effected, a Declaration of Trust, dated June 22, 2015, was executed by the Deceased and Vincent in respect of the Maruzs Farmland (the “ June 2015 Declaration of Trust ”).

Notwithstanding the joint tenancy, the June 2015 Declaration of Trust stated that Vincent held his interest in the Maruzs Farmland in trust for the Deceased. [ 19 ] Clauses in the 2016 Will also stated that the right of survivorship was vacated. III. Issues [ 20 ] The questions that need to be addressed are as follows. (

a) Does section 32(1)(

b) of the Wills and Succession Act (“ WSA ”), SA 2010, c W-12.2 , prevent the lapse of the bequest in clause 10 of the 2016 Will? (

b) Are there contrary intentions in the 2016 Will that displace the application of section 32(1)(

b) of the WSA to the bequest in clause 10 of that testamentary document? (

c) Is there any other interpretative reason to not allow the anti-lapse rule in section 32(1)(

b) of the WSA to apply to the bequest in clause 10 of the 2016 Will? IV. The Law – An Overview [ 21 ] The issue is whether the 2016 Will passes the Maruzs Farmland to the descendants of Vincent or whether the residual clause

in the 2016 Will captures the Maruzs Farmland, which is then distributed to the Applicant and her sisters. [ 22 ] This issue arises because Vincent predeceased his mother, the Deceased. That untimely death gives rise to the interpretative debate on which this Application is focused. A. The Context [ 23 ] The 2016 Will was drafted so that the Maruzs Farmland would go to Vincent. I infer the expectation was that the mother would predecease her son. [ 24 ] If Vincent had died after the Deceased, the Maruzs Farmland would have passed to him.

There is no debate on that hypothetical construction of the 2016 Will. [ 25 ] Vincent passed away on April 3, 2021. That was 99 days before his mother died. [ 26 ] A Grant of Probate was obtained for the 2016 Will. No party challenged the validity of the 2016 Will during that formal process. During cross examination, Sandra confirmed that she was not challenging the validity of the 2016 Will. [ 27 ] Since Vincent died before his mother, the Applicant alleges an entitlement to a portion of the Maruzs Farmland.

She takes the position that the Maruzs Farmland should go to her and her sisters rather than to the children of Vincent. B. Residuary and Non-Residuary Bequests [ 28 ] When a testator makes a will, they may make non-residuary bequests. These are also referred to as specific bequests or legacies. Such bequests are defined and finite. [ 29 ] A non-residuary bequest is carved out of, and separate from, the residue of the underlying estate.

A bequest of $10,000 or a bequest of a piano to named individuals under a will are examples of non-residuary bequests. [ 30 ] The 2016 Will specified a number of non-residuary bequests, including: (

i) the bequest of personal effects; (ii) the bequest to Sandra, the Applicant, in the amount of $57,500; (iii) the bequest to Karen in the amount of $49,000; (iv) the bequest to Kimberley in the amount of $55,000; and (

v) the bequest to Vincent of the Maruzs Farmland: see clauses 5, 6, 7, 8, and 10 of the 2016 Will, respectively. [ 31 ] A testator may also make residual bequests in their will. The residue of a person’s estate consists of whatever is left after the payment of taxes, debts, estate expenses and specific bequests. In these circumstances, the residue is not a defined or finite bequest. [ 32 ] If a will does not contain a residuary clause, the testator will be partially intestate. The 2016 Will does not have that gap. [ 33 ] Clause 12 of the 2016 Will is the residuary clause.

Since no party has challenged the validity of the 2016 Will, I infer that the residuary clause of the 2016 Will is not at issue. [ 34 ] Rules govern the priorities of certain obligations and bequests. Legally enforceable taxes, debts and expenses of a deceased person and their estate have first priority over the assets of a deceased person. a. If the taxes, debts and expenses exceeded the total estate value, it would be irrelevant what bequests a person made in a will.

In such circumstances, no beneficiary under a will would receive any inheritance and the creditors will divide the estate assets pro-rata: see Estate Administration Act, SA 2014, c E-12.5 (the “ EAA ”)

section 27 . b. If assets in a particular estate exceed the taxes, debts, and expenses, those obligations are paid from the residue: see EAA

section 28 . The non-residuary beneficiaries are then advanced or transferred their bequests prior to the distribution of residuary bequests. The remaining residue of the estate is then divided amongst the residuary beneficiaries. c. If there is insufficient residue to fund all non-residuary bequests in full after payment of the taxes, debts and expenses, all of the non-residuary bequests abate pro-rata. In these circumstances, residuary beneficiaries receive nothing. [ 35 ] Clause 11 of the 2016 Will modifies the application of the principle of abatement and the application of

section 28 of the EAA . If there was less than $161,500 remaining in the Maruzs Estate after payment of her taxes, debts and expenses, rather than have all of the bequests in clauses 6, 7, 8 and 10 abate proportionately, the Deceased ensured through the 2016 Will that Sandra, Karen and Kimberley would each receive their non-residuary bequests. As structured, only the net value of the bequest of Maruzs Farmland to Vincent would be reduced. C. Testamentary Freedom and the Application of Statute to Wills [ 36 ] A person has the testamentary freedom to dispose of their estate as they wish.

That is a guiding principle underlying the making of a will: Morin Estate (Re) , 2020 ABQB 725 at clauses 83-85. [ 37 ] Testamentary freedom of a person is fettered only in limited circumstances. Such circumstances include public policy, dependent’s relief, illegality, capacity and undue influence: Morin Estate at para 85. [ 38 ] There is no claim that the 2016 Will is invalid or that any of the beneficiaries have a claim for family maintenance and support. As a result, these limited circumstances are not relevant to this Application.

[ 39 ] Provided a person has the capacity to do so, their testamentary freedom includes the ability to change their will at any time. An individual has this entitlement regardless of what conversations they have had with beneficiaries before or after a will was made, and regardless of what their prior will may have stated. [ 40 ] Legislation in Alberta may supplement or apply to a person’s will, subject always to the contrary intention in the subject will. Three examples of legislative applications are as follows. (

a) If a testator has become divorced after making their will, but their former spouse is still named as executor or beneficiary, the WSA deems such appointments and bequests revoked and causes the deceased’s will to be interpreted as though the deceased’s former spouse had predeceased the deceased: WSA at

section 25. (

b) If a testator bequeaths real property to a beneficiary that is encumbered by a mortgage, unless the testator specifies otherwise in their will, the person inheriting the real property also inherits the mortgage: EAA at

section 29 . (

c) If a testator makes a bequest to a minor and fails to appoint a trustee for the minor’s interest, the Public Trustee becomes the trustee of the minor’s property: Public Trustee Act , SA 2004, c P44.1 at

section 5 . [ 41 ] Legislation can also step in to fill gaps or address specific situations relating to wills and estate administration. Such statutory provisions are known as statutory rules of construction. [ 42 ] The nature of statutory rules of construction were discussed in a report published by the Alberta Legal Reform Institute in 2010 in connection with the amendments contained in the current WSA: see Wills and the Legal Effects of Changed Circumstances (Final Report No, 98) , Alberta Law Reform Institute (“ ALRI Report ”) . [ 43 ] The application of legislation to a person’s will are not rules of

interpretation. Typically, the application of legislation is because specific circumstances need to be addressed by statute. That said, most applications of legislation to a person’s will are subject to the contrary express intention in a testator’s will: ALRI Report at paras 242 – 244 (pages 98-100). [ 44 ] The fundamental principle of testamentary freedom includes the ability to navigate and avoid the application of legislation to a testator’s will and the administration of their estate. D. The Doctrine of Lapse and Anti-Lapse Legislation [ 45 ] Anti-lapse legislation is not new or novel.

It has existed since the 1800s in England: Oosterhoff on Wills (Ninth Edition), Oosterhoff, Albert H., Freedman, David C., McInnes, Mitchell, and Parachin, Adam (“ Oosterhoff on Wills ”) at

chapter 15, page 648,

section 15.3.1. All of the provinces of Canada have some form of anti-lapse legislation. [ 46 ] Anti-lapse legislation is a circumstance where legislation steps in to fill a gap in a will in defined situations. Oosterhoff on Wills summarizes the purpose of anti-lapse legislation: The doctrine of lapse is inconvenient and likely to be contrary to the testator’s intention when he leaves a gift to a close relative. The testator would probably want the heirs of that relative to take if the primary beneficiary dies.

Perhaps the testator believes that will happen; perhaps he has not turned his mind to the matter at all. If the testator had thought about it, he would no doubt have named an alternative beneficiary to take. That being the likely intention, all the common law provinces have enacted legislation to achieve this result: Oosterhoff on Wills at 648. [ 47 ] The application of anti-lapse legislation is different from the division of an estate under an intestacy. An intestacy or partial intestacy arises if a deceased does not have a will or if their will fails to dispose of all of their property.

In contrast, anti-lapse legislation provides for substitutional beneficiaries through a statutory framework when certain qualifying beneficiaries have died before the testator. [ 48 ] Subsection 32(1)(

b) of the WSA is the legislative provision at issue in this Application. This statutory provision warrants a few comments. [ 49 ] First, the testator has the ability to avoid the application of

section 32 entirely by specifically naming an alternate beneficiary to a bequest or by using other words that somehow describe that the bequest is subject to the beneficiary surviving the testator. The legislated entitlement is provided for in section 32(1)(

a) of the WSA . [ 50 ] Second,

section 32 of the WSA only applies to the descendants of a testator. If the predeceased recipient of a bequest is a stepchild, sibling, niece, nephew, neighbor, friend or any person other than a child, grandchild or great grandchild of the deceased, the anti-lapse legislation does not provide a substitutional beneficiary. When the anti-lapse legislation does not apply, the bequest passes to the residue: see section 32(1)(

c) of the WSA . [ 51 ] Third, through section 32(1)(

b) of the WSA , the legislature deemed it appropriate to define a narrow category of persons protected by the anti-lapse legislation: ALRI Report at paras 365-369 (pages 140-141). This statutory clause adopted the suggestion of ALRI Report , which recommended that failed gifts be directed by anti-lapse legislation to an individual’s issue rather than their siblings: ALRI Report at para 368. [ 52 ] In many provinces of Canada, provincial anti-lapse legislation also applies to siblings of a deceased person. In former legislation in Alberta, anti-lapse legislation also extended to siblings of a deceased person:

section 35 of the Wills Act , RSA 2000, c. W- 12 [“ Repealed Wills Act ”]; see also Fossen Estate , 2002 ABQB 530 at para 8 . In preparing the ALRI Report, the drafters determined that there was no “...sound reason which could justify retaining the testator’s siblings as triggering family members under a new distribution scheme”: see ALRI Report at para 366 (page 140) .

[53] The new WSA legislation reflected that narrow category of substituted beneficiary. Under the WSA, the bequest passes to thedescendants of the predeceased beneficiary, and siblings have been excluded. This issue was also examined and recommended in theALRI Report: see paras 370-373 (pages 141-142). [54] In prior legislative frameworks, the bequest may have passed the “estate” of the predeceased beneficiary to a broader class ofindividuals, which could have included the siblings of the predeceased beneficiary:

section 35 of the Repealed Wills Act; see also ReWudel; Moore v Moore (1982), 13 ETR 25; (ABQB) at para 9 [Moore]. V. Analysis [55] When a court is asked to construe a will, it is the intention of the testator which is relevant: Fossen Estate at para 13. Thewords used by the testator are a means of discovering that intent and nothing more: Fossen Estate at para 13. [56] Before a court can displace the application of the statutory anti-lapse rule, it needs to be satisfied as to the intention of thetestator. In considering matters, a court should not be compelled to guess.

A court needs to review the entire will, consider the relevantcontext, and act on proof, as opposed to logic, rumour, innuendo or wishful thinking: Fossen Estate at para 14; see also Doucette vFedoruk Estate, (MBCA) at para 32. [57] The Applicant asserts that the 2016 Will is very complex as to how the entirety of the 2016 Will and June 2015 Declaration ofTrust are structured and how they interrelate. [58] The Respondents take a very different view. They assert that the nature of the underlying issue is so straight forward thatextrinsic evidence is not necessary to determine the Application.

The Respondents make this assertion because they are of the view thatthe question before the Court can be answered by simply applying section 32(1)(

b) of the WSA. I turn to consider both of these matters. A. Does section 32(1)(

b) of the WSA prevent the lapse of the bequest in clause 10 ofthe 2016 Will? [59] The Applicant asserts that the residuary clause of the 2016 Will applies to the specific bequest of the Maruzs Farmlandbecause Vincent died before the Deceased. However, in advancing this legal result the Applicant does not dispute the application ofsection 32(1)(

b) of the WSA in the first instance. I make this comment because the Applicant stated explicitly in their written submissionsthat “[s]ection 32(1)(

b) of WSA applies because there is no alternate named in clause 10 of the [2016] Will. Also, clause 10 of the Willdoes not state that Vincent must survive the Testatrix.” [60] Based on my review of the evidence and analysis of the law, I find that section 32(1)(

b) of the WSA prevents the lapse of thebequest to Vincent in clause 10 of the 2016 Will. [61] The above determination, however, does not conclude matters. The Applicant asserts, among other arguments, that the onlyway for the 2016 Will to make sense is to: (

i) find a contrary intention by reading the 2016 Will in its entirety; or (ii) amend the 2016Will by inserting the necessary language so the 2016 Will makes sense. [62] Given the nature of Application and law raised during the submissions, I now turn to address whether there are contraryintentions in the 2016 Will that prevent the application of section 32(1)(

b) of the WSA to the bequest in clause 10 of the 2016 Will. B. Are there contrary intentions in the 2016 Will that displace the application ofsection 32(1)(

b) of the WSA to the bequest in clause 10 of that testamentarydocument? [63] The Applicant asserts that a contrary intention exists in this case. In particular, she asserts the Deceased did not treat any of hergrandchildren with a settled intention to inherit property under the 2016 Will. This assertion engages the issue as to whether a contraryintention can be construed from the 2016 Will or the surrounding circumstances. [64] The Applicant asserts that there are two schools of thought on how I am to determine if there is a contrary intention.

The firstschool is that the intention can be implicit within the 2016 Will as a whole. The second school is that the intention can be found in theexplicit language and words within the 2016 Will, such as stating “it is my intention”. The Applicant states that both approaches aresatisfied in this case. [65] In advancing her arguments, the Applicant places significant reliance on the Moore case.

The Applicant acknowledges thatMoore is an older decision but asserts it is still good law in Alberta. [66] To bolster its assertion, the Applicant stated that the Moore decision has never been overturned in the Province of Alberta.The Applicant also asserted that notwithstanding the Moore decision was issued the Queen’s Bench (now King’s Bench) of Alberta, itwould take the Alberta Court of Appeal to overturn Moore. It asserts this proposition on the premise that Moore has been good law for40 years. [67] I reviewed the Moore case with great interest given the weight that the Applicant placed on the decision.

To further bolster itsargument, the Applicant asserted that the

interpretation and significance of the Moore decision is unequivocal because it is used as a casestudy within Oosterhoff on Wills.

[68] The alleged significance of Moore as noted by the Oosterhoff on Wills text is that the Court in that case found the contraryintention to be implied from the gifts within the will and the surrounding circumstances. The Applicant acknowledges that somejurisdictions considered Moore and have taken a modified approach. These jurisdictions have required that the contrary intention beexpress. [69] Notwithstanding the Applicant’s assertions to the contrary, I do not find Moore to be binding on me.

I make thatdetermination for a number of reasons. [70] First, while Moore has been on the law books for approximately 40 years, it has never been referenced by either the Court ofKing’s Bench (formerly Queen’s Bench) of Alberta or the Alberta Court of Appeal.

That is why it has never been overturned in thisprovince. [71] Second, there is a critical factual difference between the will in the Moore case and the 2016 Will drafted by the Deceased.Concerning the will in the Moore case, it made specific mention of the grandchildren by stipulating that all of the grandchildren were tobe treated equally: Moore at para 27. There is no indica in the 2016 Will that directs that all of the grandchildren of the Deceased were tobe treated equally.

In contrast, the 2016 Will is silent on that point, and I do not construe silence to mean that grandchildren of theDeceased were to be treated equally.

Depending on the context, I generally would infer that silence was indicative of no contraryintention or that it is at least as likely that the Deceased never thought her bequests might lapse: see Fossen Estate at para 15; ReRosychuk (Estate), 2005 ABQB 707 at para 20. [72] Third, the fact that the Moore decision has been used in a case study within Oosterhoff on Wills is interesting, but that is notbinding on me. [73] The Applicant also submits that the contrary intention in the 2016 Will can be found implicitly, as accepted in Moore.

In otherwords, the Applicant asserts that a contrary intention can be found within the 2016 Will by implication through the language used in thattestamentary document as a whole. [74] The fundamental principle in the

interpretation of testamentary documents is that effect must be given to the testator'sintention ascertainable from the expressed language of the instrument. As far as possible, the will itself must speak: In re Estate ofBrown (deceased), (SCC), [1934] SCR 324 at 330. As I stated above, what is relevant is the testator’s intention. [75] If the intention remains doubtful after careful consideration of the language used in a particular provision of the will and thecontext surrounding the testamentary document, then resort may be had to certain rules which have been generally adopted.

This mayoccur if a statutory scheme of distribution is considered inapplicable because there is a clear intention to oust the anti-lapse provisions inthe WSA: Moore at para 24. However, once the testator's intention is clear, the legal effect of that intention must be followed, even if itcould be shown that the testator did not know the effect in law of what they had directed. [76] I turn first to the key wording in the relevant statutory framework. Section 32(1)(

b) of the WSA states that the anti-lapselegislation applies unless there is a contrary intention expressed in the 2016 Will. [77] The Applicant asserts that it is relevant that the Deceased’s grandchildren are not mentioned anywhere in the 2016 Will.While the 2016 Will may be silent concerning the grandchildren, that fact is not necessarily supportive of the contrary intention asadvocated by the Applicant. I touched on this point above and reiterate that I am of the view that the silence of the Deceased in the 2016Will does not support a contrary intention.

Given the context of this case, it suggests to me that the grandmother, the Deceased, eitherhad no intention of treating all her grandchildren equally or she had not thought about the issue. [78] The Applicant also asserts that the residual component in clause 12 of the 2016 Will embodies a contrary intention to the anti-lapse legislation. I disagree. [79] As stated above, the residuary clause in the 2016 Will does not apply to a specific bequest unless the particular specificbequest has lapsed. The purpose of an anti-lapse provision is to prevent the event of lapse unless a contrary intention is established.

Inmy view, no such contrary intention has been established in respect of the 2016 Will. As a result, the Applicant’s assertion on this pointhas no merit. [80] The Applicant also asserts that clause 13 of the 2016 Will evidences a contrary intention. Again, I disagree. [81] Clause 13 of the 2016 Will describes the ownership in joint tenancy of the Maruzs Farmland between the Deceased andVincent. The Deceased stated that she did not wish for Vincent to acquire an interest in the Maruzs Farmland by right of survivorship.Rather the Maruzs Farmland was to pass pursuant to the terms of her 2016 Will.

The 2016 Will states that the Maruzs Farmland isbequeathed to Vincent: see 2016 Will clause 10. The 2016 Will could not be clearer on that point. [82] In addition to the comments in clause 13 of the 2016 Will, the Deceased and Vincent signed the June 2015 Declaration ofTrust concurrent with the transfer of Maruzs Farmland into joint tenancy. As is evident, the June 2015 Declaration of Trust was executedby the parties more than six months before the Deceased executed the 2016 Will. [83] In my view, the Applicant has misinterpreted the intentions described in the 2016 Will.

As I read the testamentary document,clauses 9, 11, and 13 of the 2016 Will support the fact that there was no contrary intention. In making this determination, I am of theview that clauses 9, 11 and 13 of the 2016 Will are interrelated. [84] Clause 9 of the 2016 Will states that the Maruzs Farmland is not to be sold to satisfy the bequests in clauses 6, 7 and 8.

Whilethe Deceased was categoric in her direction not to sell the Maruzs Farmland, she provided a mechanism to fund the bequests stipulated inclauses 6, 7 and 8 of the 2016 Will. [85] If the cash reserves in the Maruzs Estate were insufficient to satisfy the bequests in clauses 6, 7, and 8 of the 2016 Will, then

the Deceased directed mortgages to be registered against specified parcels of Maruzs Farmland in favor of Sandra, Karen and Kimberley. Clause 11 of the 2016 Will stipulated that those mortgages were to be in the amount of the bequests, or the shortfall required to complete the bequests. By stipulating this backup mechanism, the Deceased provide a way to fund her bequests to her daughters. That is not indicative of a contrary intention.

In my view, it was a mechanism to provide her daughters with economic security for the amounts bequeathed. [ 86 ] Clause 13 of the 2016 Will states that notwithstanding the joint tenancy between the Deceased and Vincent, the Maruzs Farmland is to be dealt with pursuant to the 2016 Will.

In particular, the Maruzs Farmland is not to be dealt with by way of the right of survivorship. [ 87 ] As I read the testamentary documents, the collective rationale for clause 13 of the 2016 Will and the June 2015 Declaration of Trust is to ensure that Sandra, Karen and Kimberley do not receive less than the amount of the bequests in the 2016 Will. In my view, clause 13 of the 2016 Will provides a statement that modifies the law in order to achieve the desired intention of the Deceased.

I do not construe the protection components inherent in clause 13 as an attempt by the Deceased to void the bequest of Maruzs Farmland to Vincent in the event he predeceased his mother. Indeed, I construe a contrary intent. That is, I read the collective testamentary documents as directing a clear intent. The daughters were to receive cash and the son was to receive the farmland. That is the simple essence of the five-page 2016 Will.

Contrary to the assertions of the Applicant, it is not complicated. [ 88 ] As I construe the relevant testamentary documents, the Deceased directed that the Farmland be handled in this manner so that her daughters had the benefit of a security mechanism. In the event it was necessary, the Deceased wanted the bequests to her daughters to be funded by potential mortgages.

If the Farmland shifted to Vincent by right of survivorship (on the hypothetical assumption that the mother predeceased Vincent), the daughters of the Deceased could have been left with less than they were intended to be gifted. [ 89 ] Since the 2016 Will applies to the specific bequest of Maruzs Farmland to Vincent, that real property would fall into the residue only if the doctrine of lapse applied. As stated above, the doctrine of lapse does not apply due to the operation of section 32(1)(

b) of the WSA . But for a contrary intention being established, the Applicant conceded that point, as I noted above. [ 90 ] The assertion that the testator’s intention is to be drawn from the other clauses in the 2016 Will or by reading the 2016 Will as a whole do not achieve the result the Applicant is advocating. In particular, reading the 2016 Will as a whole does not avoid the application of section 32(1)(

b) of the WSA because I am not persuaded that a contrary intention exists. [ 91 ] There would have been a different result if the Deceased transferred the Maruzs Farmland into joint tenancy with Vincent and did not address that real property in her 2016 Will. If that framework had been put in place, the Maruzs Farmland would have reverted to the Deceased by right of survivorship upon the death of Vincent. As a result, the Maruzs Farmland would have become residue. That did not occur because the Deceased stated specifically that she did not want the Maruzs Farmland to be transferred by right of survivorship.

The June 2015 Declaration of Trust strongly supports this determination. [ 92 ] Concerning the overall intention of the Deceased, clause 9 of the 2016 Will is instructive. In that clause she directed “...that in no event shall any of my real properties be sold to satisfy the bequests described in clauses 6, 7, or 8 of this my Will”. [ 93 ] It is clear from clause 9 of the 2016 Will that the Deceased did not want the Maruzs Farmland to be sold. In my view, this

interpretation is supported by the fact that the Deceased did not sign the draft 2004 will where she considered a distribution of the farm amongst all her descendants after Vincent’s passing (the “ Draft 2004 Will ”). [ 94 ] Ultimately, the Deceased did not execute the Draft 2004 Will, or if she did, she reverted to an outright gift of the Maruzs Farmland to Vincent in a will that she executed in 2015 (the “ 2015 Will ”).

Given this overall context, I infer that it was important to the Deceased for the Maruzs Farmland to continue to operate in her family, rather than being sold and having the proceeds divided. [ 95 ] The Deceased therefore provided that mortgages were to be registered against specified parcels of the Maruzs Farmland to ensure that each daughter received their minimum bequest, without causing any of that farmland to be sold. [ 96 ] If Vincent had survived the Deceased, he would have inherited the Maruzs Farmland without any imposition of trust, conditions, or other restrictions.

The only exception to this result would have been the potential mortgages against the Maruzs Farmland in favor of Sandra, Karen and Kimberley, if necessary. [ 97 ] Based on my review of the evidence and analysis of the law, I find there are no contrary intentions in the 2016 Will that displace the application of section 32(1)(

b) of the WSA to the bequest in clause 10 of that testamentary document, which is the Maruzs Farmland. C. Is there any other interpretative reason to not allow the anti-lapse rule in section 32(1)(

b) of the WSA to apply to the bequest in clause 10 of the 2016 Will? [ 98 ] While my above review of the evidence and analysis of the law is sufficient to conclude this case, I acknowledge that the Applicant advanced a number of additional arguments which deserve comment for completeness. Given the Applicant asserts that the 2016 Will is very complex, it is incumbent on me to address some of the points raised by that party. 1.

Interpretation of Wills [ 99 ] The

interpretation of a will arises when a Court has to give meaning to the words in that testamentary document. Oosterhoff on Wills summarizes the use of principles of

interpretation as follows. In interpreting a will, the court will often rely on certain general principles to guide it in determining the meaning of the words used. […]

These principles do not really restrict the court ascertaining the testator’s meaning but give it flexibility in

interpretation. Nevertheless,they do operate to attribute a fictional or presumed intention to a testator if the words and phrases used by her have left the intentiondoubtful and uncertain. If the testator’s intention is clearly ascertainable within the limits imposed by law on discovering that intention,there is no need to rely on any of the principles of construction, for they are not rules of law, such as the rule against perpetuities, butyield to a contrary intention.

Moreover, the primary purpose of the court is to determine the testator’s intention, having regard to thelanguage used in the will and the circumstances in which the will was made. Consequently, it is often not necessary to rely on thegeneral principles: Oosterhoff on Wills, at page 483,

section 13.3.1(a). [100] In her efforts to interpret the 2016 Will, the Applicant acknowledges that the Deceased set out a series a specific gifts to herchildren. The three daughters were each given a specific gift of money and her son was bequeathed the Maruzs Farmland. The 2016 Willnamed no alternates for any of the specific gifts in the clauses that set out the gifts. The residue of the Maruzs Estate was given in firstinstance to Vincent.

The alternate residual beneficiaries were the three daughters of the Deceased. [101] The Applicant asserts that it is actually very complex as to how the entirety of the 2016 Will and June 2015 Declaration of Trustis set out. The Applicant makes this assertion because the 2016 Will allegedly includes a series of clauses dealing with the requirement tomortgage the Maruzs Farmland in the event that there is not enough money to pay the specific gifts to the daughters of the Deceased.

TheApplicant also asserts that there are a series of complex clauses dealing with joint tenancy for the Maruzs Farmland. [102] Based on my review of the evidence and analysis of the law, I do not find the 2016 Will complex. Further, I am not being askedto interpret the 2016 Will. I make that determination because there are no words to interpret.

As I read the testamentary documents in thisApplication, I am of the view that the words within the 2016 Will leave no ambiguity that need to be resolved or given meaning. [103] The issue in this instance is that certain facts are not accounted for by the words in the 2016 Will. The question is whether theapplicable legislation applies to resolve the lack of words in the 2016 Will. [104] The Applicant asserts that I should add the words “if s/he survives me” to clauses 6, 7, 8, and 10 of the 2016 Will. I haveconsidered the Applicant’s assertion.

Adding words into a will is different from giving meaning to words in a testamentary document. [105] Based on my understanding of the law, inserting words into a will can only be performed by the court when there is anapplication for rectification of a will. Further, an application to insert words will only be granted if there is clear and convincingevidence. These are legislative requirements: see

section 39 of the WSA. Since rectification was not included in the Application, there isno need to consider the matter further. [106] Given the clear application of section 32(1)(

b) of the WSA to the bequest to Vincent, the only way to prevent the anti-lapselegislation from applying is to insert words into the 2016 Will. That requires proof and evidence of a mistake. Again, that is not beingalleged in this Application. [107] If the question before the Court is a question of

interpretation,

section 26 of the WSA outlines the type of evidence that may beadmitted. While I do not think it necessary to go there, a couple of comments are warranted. [108] The approach to be taken by the Court in considering the admissibility of evidence was set out in Decore Estate, 2009 ABQB440. [7] The law with respect to armchair and extrinsic evidence is well developed and reasonably straight forward and may be summarizedas follows: 1. Where the testamentary instrument is clear and unambiguous, no evidence beyond the document is received. Presumably becausenone is necessary. 2.

Where the testamentary instrument is unclear as to intent or in construction, armchair evidence is receivable. Again, presumably,because that evidence will bring clarity. In my view that rule is too narrow. I accept the view of Bayda J.A. (as he then was) in Haidl v.Sacher (1979), (SK CA), 106 D.L.R. (3d) 360 (Sask. C.A.), as adopted by Egbert J. in Davis Estate (Re), [1983] A.J.No. 744 (Alta. Q.B.).

I conclude that the rule has been relaxed such that in any case where there is an apparently legitimate contest overthe construction of a testamentary instrument, context or armchair evidence is likely to assist in resolving the dispute and should bereceived. 3. Where a testamentary instrument is ambiguous, extrinsic evidence of intent is receivable. In this context ambiguity does not simplymean competing possible

interpretations. The

interpretations must be equally plausibly intended. 4. Where there is reason to believe that the testator made a mistake and the mistake was one of fact, not law, both armchair evidence andextrinsic evidence may be received. Where the alleged mistake is established, the offending portions of the instrument are struck andwhat remains is then construed. [8] There are policy reasons for restricting the general admission of extrinsic evidence which may be probative of the testator’s intent ormeaning. Some of those reasons are: 1.

There is a danger that a flood of spurious claims backed by hearsay will clog the courts and bring chaos to the orderly administrationof estates; 2. There is a danger that the written document will be supplanted by an oral or a verbal direction: Decore Estate at para 7-8. [109] The Court goes on to say in Decore Estate that evidence admitted must always be subject to the principles of necessity andreliability: Decore Estate at para 9. I acknowledge that Decore Estate was decided before the WSA was introduced. However, theDecore case has been cited frequently after the coming into force of the WSA.

[ 110 ] In closing on the

interpretation of the 2016 Will, I reiterate that I am of the view the words within that testamentary document leave no ambiguity which needs to be resolved or given meaning. 2. Is armchair evidence admissible? [ 111 ] The admissibility of armchair evidence was touched on above: see Decore at para 6 and 7 . The application of the “armchair rule” means that I place myself in the position of the Deceased when the 2016 Will was made to determine the testator's intention. [ 112 ] When I do this, I need to look at the circumstances which existed when the Deceased made the 2016 Will and the 2016 Will as a whole.

That includes a review of the specific language used and the other provisions in the 2016 Will. [ 113 ] If I were to consider the armchair evidence, it would point in favor of Vincent receiving the Maruzs Farmland. I make this determination because when I consider circumstances which existed when the Deceased made the 2016 Will and the read the 2016 Will as a whole, I infer that the testator wanted to keep the family farm together as a unit. The best way to ensure that was for the Deceased to bequeath the Maruzs Farmland to Vincent.

Based on my review of the evidence, this determination is consistent with the specific language used in the 2016 Will. That is, I have not been convinced that the Deceased had a contrary intention. [ 114 ] Based on my review of the evidence and analysis of the law, I find that armchair evidence is not necessary for me to determine the Application. Therefore, armchair evidence is not admissible. The question before the Court can be answered by simply applying section 32(1)(

b) of the WSA because no contrary intention has been established. [ 115 ] In the circumstances of this case, I also find the 2016 Will is sufficiently clear and unambiguous when it is read objectively. As a result, I am of the view that no evidence beyond the testamentary document is necessary: Decore at para 7 . I make this determination notwithstanding that the Applicant asserts the 2016 Will is complex. As stated above, I disagree. To reiterate, in my view the 2016 Will is clear and unambiguous. 3.

Is extrinsic evidence admissible? [ 116 ] To assist me in my quest to determine the intention of the Deceased in drafting the 2016 Will, I may consider extrinsic evidence. Extrinsic evidence is evidence that helps inform the surrounding circumstances at the time the Deceased made her 2016 Will. This includes factors such as the Decease’s relationship with her family, who her friends were, and earlier documentation in the form of prior wills.

I am permitted to use this evidence to help explain what is written in the 2016 Will. [ 117 ] In my view, extrinsic evidence is not necessary for me to determine the Application. The question before the Court can be answered by simply applying section 32(1)(

b) of the WSA because no contrary intention has been established. [ 118 ] However, if I were to consider the extrinsic evidence, it would point in favor of Vincent receiving the Maruzs Farmland. I make this determination because virtually all of extrinsic evidence suggests that the Maruzs Farmland was to be inherited by Vincent. To support this conclusion, I will review: (

i) notes made by the Deceased’s lawyer; (ii) prior wills of the Deceased; and (iii) the evidence the Applicant provided in affidavit format and her cross-examination on her affidavit. a. Lawyer Notes [ 119 ] Mr. Herman was the lawyer who prepared the 2016 Will. His notes fall into the basket of extrinsic evidence. Those notes may be instructive in the quest to determine the intention of the Deceased. Certainly, his notes will reflect instructions he received from the Deceased with respect to the preparation of her 2016 Will. [ 120 ] The key notes of Mr. Herman are those which state that “all land go to Vince”.

Unfortunately, there is no mention in the notes of what happens if Vincent (or any other of the Deceased’s children) should predecease the Deceased. The notes are silent on that point. [ 121 ] It is possible that the Deceased did not turn her mind to the gift over of the Maruzs Farmland. Indeed, that is the likely scenario. If she had stated her intention explicitly, it would have been reflected in the notes Mr. Herman kept and in the 2016 Will. [ 122 ] Other than the notes prepared by Mr.

Herman, there is no other evidence in the form of other documents, reports or statements from independent third parties contemporaneous with the preparation of the 2016 Will that might inform me concerning the Deceased’s intentions. [ 123 ] In

summary, I am of the view that there is nothing in the lawyer’s notes that assists Sandra in the Application. The better view is that when viewed in context, the lawyer’s notes are supportive of the application of the anti-lapse rule in section 32(1)(

b) of the WSA . b. Prior Wills [ 124 ] There are three prior wills of the Deceased which I will refer to as the “2001 Will”, the “2004 Will”, and the “2015 Will” (collectively, the “ Prior Wills ”). The Prior Wills were all revoked by operation of law on the making of a subsequent will: WSA at

section 23. [ 125 ] The content of the Prior Wills do not assist with the

interpretation of the 2016 Will. However, the Prior Wills do form part of the extrinsic evidence. While I may not put much weight on these documents, it is relevant to consider whether the Prior Wills of the Deceased can assist with

interpretation of the 2016 Will. [ 126 ] The 2001 Will is similar to the 2015 Will and the 2016 Will in that the Maruzs Farmland was gifted to Vincent, with no gift over. The “Will Register” at the law firm of Herman Kloot & Co appears to say that the 2001 Will was signed by the Deceased, but then

revoked and replaced by a subsequent will. [ 127 ] The 2001 Will illustrates the intent of the Deceased to pass the Maruzs Farmland to Vincent even before he took over the farming operation full time in 2004. This factor is consistent with the structure of the 2016 Will. [ 128 ] As I noted above, there was a Draft 2004 Will. The Draft 2004 Will was different than the other wills prepared by the Deceased. The Draft 2004 Will contemplated a scenario where Sandra, Karen and Kimberley would acquire an interest in the Maruzs Farmland after Vincent’s passing. It is not known whether the Draft 2004 Will was ever signed.

The “Will Register” at the law firm of Herman Kloot & Co does not show an entry for the 2004 Will. As a result, I infer the Draft 2004 Will was never formalized. This is the reason I did not include the Draft 2004 Will in the definition of “Prior Wills”. [ 129 ] Regardless of whether the Draft 2004 Will was ever signed or simply remained a draft, it forms part of the extrinsic evidence. Importantly, the Draft 2004 Will indicates that the Deceased considered a different scheme of distribution concerning the Maruzs Farmland but ultimately decided against it. [ 130 ] I now turn to the 2015 Will.

That testamentary document parallels the 2016 Will, except for the amount of the bequests to each of Sandra, Kimberley and Karen. The “Will Register” at the law firm of Herman Kloot & Co indicates that the 2015 Will was signed by the Deceased but then revoked and replaced by the 2016 Will. There is no mention in the 2015 Will of a gift over of the Maruzs Farmland if Vincent should predecease the Deceased. [ 131 ] In

summary, I am of the view that there is nothing in the Prior Wills that assists Sandra in the Application. The better view is that when viewed in context, the Prior Wills and the Draft 2004 Will are supportive of the application of the anti-lapse rule in section 32(1)(

b) of the WSA . c. Applicant Evidence – Affidavit and Cross-Examination [ 132 ] The Applicant submits that her sworn statement should be admitted as evidence of the Deceased’s intention. The Applicant claimed that the source of her knowledge of the Deceased’s intention arose from discussions with her mother. [ 133 ] The Applicant asserts that the treatment of the grandchildren in the 2016 Will is critical to a determination in this Application. She highlights that the 2016 Will does not mention grandchildren once.

Indeed, she emphasizes that there are no provisions within the 2016 Will where any of the grandchildren of the Deceased would inherit any portion of the estate under any circumstances. As I determined above, the fact that the 2016 Will is silent on the grandchildren of the Deceased does not establish the contrary intention that the Applicant is seeking. [ 134 ] In an effort to lay an evidentiary foundation, the Applicant swore an affidavit to support her position.

She was cross examined on that affidavit. [ 135 ] The Applicant asserts that her understanding as to how the Maruzs Farmland was to be distributed remains unchallenged. She further asserts that her affidavit evidence and her cross-examination is corroboration as required under

section 11 of the Alberta Evidence Act , RSA 2000, c A-18 [“ AEA ”]. [ 136 ] Based on my review of the evidence and analysis of the law, I do not agree that the Applicant has satisfied the requirements of

section 11 of the AEA . I make that determination because

section 11 of that statute only applies in limited circumstances. [ 137 ] In my view, the limited circumstances of

section 11 of the AEA are not satisfied in this case. Specifically, “[i]n an action by ... the heirs... of a deceased person, an ... interested party shall not obtain a verdict, judgment or decision on that party’s own evidence [i.e., Sandra] in respect of any matter occurring before the death of the deceased person, unless the evidence is corroborated by other material evidence”: AEA

section 11 . [ 138 ] I see nothing that corroborates the evidence of Sandra, and certainly nothing that equates to the corroboration of “material evidence”. Sandra is an interested party in this Application. She cannot corroborate herself. That is specifically what

section 11 of the AEA precludes. [ 139 ] On cross-examination, Sandra also testified that she was never shown the 2016 Will by her mother, the Deceased. That being the case, the narrative of the 2016 Will would not have sparked any discussion between the Applicant and the Deceased. [ 140 ] When asked during cross-examination when the alleged discussions between the Applicant and the Deceased occurred, Sandra would not answer the question directly.

She simply testified that her “...mother spoke of this many times over the years.” When further cross-examined on the question, Sandra stated that the Deceased mentioned the inheritance of the Maruzs Farmland in 2004. [ 141 ] When pressed on the issue during cross-examination, Sandra testified that she never made any notes concerning the discussions with her mother concerning the Maruzs Farmland. She further testified during cross-examination that she did not need to make notes because it “...was already on the record in her [mother’s] will that her surviving children got the farm”.

I find the Applicant’s testimony on this point contradicts three factual matters that are already before me. [ 142 ] First, Sandra stated on cross-examination that she never saw the 2016 Will. That being the case, on what basis could Sandra testify that it was already on the record in her mother’s will that her surviving children got the farm. This assertion by Sandra is inconsistent with the testamentary narrative in the Prior Wills and the 2016 Will. [ 143 ] Second, it is clear from a reading of the 2016 Will that the only person who was to receive the Maruzs Farmland was Vincent.

There is no clear statement in the narrative of the 2016 Will that suggests the daughters of the Deceased were to receive the Maruzs Farmland in the event Vincent predeceased his mother, as opposed to his children receiving the real property through the application of the anti-lapse provision in section 32(1)(

b) of the WSA . As mentioned above, I see no evidence on which to draw a contrary intention.

But for him dying 99 days before his mother, the Maruzs Farmland would have gone to Vincent. [ 144 ] Third, the assertions of Sandra are not documented in the 2016 Will. If her mother had expressed the intent Sandra is advocating, it would have been easy for the Deceased to have clearly stated that point in the 2016 Will. Notwithstanding she had the benefit of legal counsel, the Deceased did not do so. [ 145 ] Based on the current application of the law, there is nothing to support Sandra’s assertion that the surviving daughters were to receive the Maruzs Farmland.

In the circumstances of this case, I exclude the affidavit evidence of Sandra because she is an interested party in this Application. As I stated above, Sandra cannot corroborate herself. That is specifically what

section 11 of the AEA bars, and for good policy reasons. I need proof to establish a contrary intention, as opposed to innuendo or wishful thinking: Fossen Estate at para 14 . [ 146 ] In

summary, I am of the view that there is nothing in Sandra’s affidavit or her cross-examination that assists her in the Application. 4. Rule of

Interpretation Against Intestacy – Irrelevant [ 147 ] The Applicant referred a couple of times during her submissions to a rule of

interpretation against an intestacy. In my view, intestacy does not arise in the circumstances of this case. [ 148 ] As I noted above, anti-lapse legislation is different from the division of an estate under an intestacy. An intestacy or partial intestacy arises if a deceased does not have a will or if their will fails to dispose of all their property. There is neither an intestacy nor partial intestacy in respect of the 2016 Will. [ 149 ] Since I considered the presumption against intestacy as being irrelevant to the dispute concerning the 2016 Will, I do not address it. VI.

Conclusions [ 150 ] Based on my review of the evidence and my analysis of the law, I am of the view that to exclude the operation of anti-lapse legislation there must be words or narrative in the 2016 Will which indicate a clear and positive intention to do so: Doucette at para 23 . In my view, no such words exist in the 2016 Will. [ 151 ] To emphasize the point, I will not find a contrary intention by “picking out little circumstances”: Doucette at para 23 . There must be more than a mere inference or conjecture. [ 152 ] I also note that the 2016 Will was prepared by a lawyer.

As such, it would have been a simple matter for the Deceased to have expressed a contrary intention, if that were her goal: Doucette at para 28 . That was not done. [ 153 ] Based on my review of the evidence and analysis of the law, I make the following determinations. a. I find that section 32(1)(

b) of the WSA prevents the lapse of the bequest to Vincent in clause 10 of the 2016 Will. b. I find there are no contrary intentions in the 2016 Will that displace the application of section 32(1)(

b) of the WSA to the bequest in clause 10 of that testamentary document, which is the Maruzs Farmland. c. There is no other interpretative reason to not allow the anti-lapse rule in section 32(1)(

b) of the WSA to apply to the bequest in clause 10 of the 2016 Will. Heard on the 13 th day of October, 2022. Dated at the City of Calgary, Alberta this 27 th day of April, 2023. D.B. Nixon J.C.K.B.A. Appearances: Darryl A. Aarbo, KC

for the Applicant Yvonne M. Williamson for the Respondents, Ericka Rae Anderson and Logan Vincent Maruzs