Magnuson Estate, 2023 ABKB 305

Court of King’s Bench of Alberta Citation: Magnuson Estate, 2023 ABKB 305 Date: 20230523 Docket: ES12 38615 Registry: Wetaskiwin Between: Court File Number ES12 38615 Court Court of King’s Bench of Alberta (Surrogate Matter) Judicial Centre Wetaskiwin Estate Name Janet Elizabeth Magnuson Applicant Joseph Magnuson Respondent Corey Anderson _______________________________________________________ Reasons for Decision of the Honourable Justice Kevin Feth _______________________________________________________ [ 1 ] Joseph Magnuson is the Personal Representative of the Estate of Janet Elizabeth Magnuson.

Corey Anderson is the residual beneficiary under Ms. Magnuson’s Will. [ 2 ] The Personal Representative applies to void the residual gift under the Will because he believes Mr. Anderson caused Ms. Magnuson’s death. The Personal Representative contends that the gift offends public policy and is therefore void. [ 3 ] The application relies on Rule 7.3 of the Alberta Rules of Court , Alta Reg 124/2010 which allows for

summary judgment in respect of all or part of a claim.

Summary judgment principles [4] Rule 7.3(1)(

b) of the Rules of Court provides that a party may apply to the Court for

summary judgment if “there is no meritto a claim or part of it.” [5] The applicant must show the claim has no merit based on facts proven on a balance of probabilities. If the moving partymeets this burden, then the resisting party must put its best foot forward to demonstrate that a triable issue remains: Weir-JonesTechnical Services Inc v Purolator Courier Ltd, 2019 ABCA 49 at paras 32 and 35 [Weir-Jones]. [6] The facts must be proven on a balance of probabilities, but merely establishing the facts to that standard is not a proxy forsummary adjudication: Weir-Jones at paras 33 and 47(b).

The evidence must be such that the judge is confident the dispute can be fairlyresolved without a trial: Weir-Jones at para 36; Hannam v Medicine Hat School District No 76, 2020 ABCA 343 at para 12. [7] As explained in Weir-Jones at para 35, if the moving party meets the initial burden of showing “no merit” based on factsproven on a balance of probabilities, the resisting party must then put its best foot forward to demonstrate that a triable issue remains: The moving party has the burden of establishing that, considering the facts, the record, and the law, it is entitled to

summary judgmenton the merits of the case, and that there is no genuine issue for trial. The resisting party then has an evidentiary burden of persuading thecourt that there is a genuine issue requiring a trial, or in other words that the moving party has not met that aspect of its burden. Theultimate burden remains on the moving party to establish that there is no genuine issue requiring a trial, and that a fair and justadjudication is possible on a

summary basis. [8] The proper approach “should follow the core principles relating to

summary dispositions, the standard of proof, the record,and fairness ... The procedure and the outcome must be just, appropriate, and reasonable”: Weir-Jones at para 47. Issues [9] The application raises the following issues:

a) Does public policy disentitle a beneficiary under a will from receiving the testator’s gift if the beneficiary caused the testator’sdeath?

b) Does the evidence establish that Mr. Anderson’s claim as a beneficiary has no merit because his conduct disentitles him from anybenefit under the Will? Voiding a gift through public policy [10] Public policy does not tolerate a wrongdoer profiting from or even being compensated for their wrong.

This principle isenshrined in the common law doctrines ex turpi causa non oritur actio - meaning “out of an illegal or immoral consideration, an actioncannot arise” - and nullus commodum capere potest de injuriâ suâ propria - meaning “no one can profit by his own wrong or get abenefit from his criminal act.” Put more simply, “one cannot profit from one’s crime.” See: Lundy v Lundy, 1895 CanLII 19 (SCC),[1895] 24 SCR 650, 1895 CarswellOnt 17 (SCC) at para 9 [Lundy]; Oldfield v Transamerica Life Insurance Co of Canada, 2002 SCC22 , [2002] 1 SCR 742 at paras 11 and 14. [11] The principle is sometimes referred to as the “Criminal Forfeiture Rule” or the “Slayer Rule”.

Where the crime causes thedeath of a testator, the rule disentitles the person criminally responsible for the testator’s death from taking any benefit out of thatvictim’s estate: Stacey v Martinello, 2022 BCSC 681 at paras 5 and 17 [Stacey]; Unger Estate (Re), 2022 BCSC 189 at para 5; TheBank of Nova Scotia Trust Company v Rogers, 2021 ONSC 1747 at para 21. [12] This public policy rule applies to both murder and manslaughter: Lundy at paras 5-6.

However, an exception to the rule ariseswhere a person is found not criminally responsible due to mental disorder: Dhingra v Dhingra Estate, 2012 ONCA 261; Re Pitts, akaCox v Kilsby, [1931] 1 Ch 546, 100 LJ CH 284. [13] The rule may be invoked on a balance of probabilities by a civil court, even where a criminal conviction has not been entered:Nordstrom v Baumann (SCC), [1962] SCR 147 [Baumann]. [14] In Baumann, at 156-157, Justice Ritchie of the Supreme Court of Canada noted that Canadian civil courts have repeatedlydetermined the question of whether the conduct of an individual amounts to a crime for the purpose of invoking the Criminal ForfeitureRule: Such a determination does not constitute a conviction or acquittal of the individual concerned nor is it in any way binding on a criminalcourt which may later be concerned with the same circumstances, but the right to determine such an issue is a necessary concomitant ofthe jurisdiction which civil courts have long exercised in such cases. [15] Ritchie J continued at 157: It is true that if such an issue is raised in a civil court at a time when proceedings are pending for the determination of the same questionin a criminal court, application may be made in the civil court for a stay of proceedings until the criminal prosecution has beenconcluded, but no such application was made in the present case, and in any event the view has been authoritatively expressed that such adiscretion should only be exercised in exceptional circumstances [citations omitted].

[ 16 ] Justice Ritchie opined that an originating summons was a permissible, but not desirable, method of initiating the proceedings and that a judge was clothed with jurisdiction to determine the issue of whether the beneficiary caused the testator’s death.

A stay of proceedings pending the outcome of a related criminal prosecution might be prudent - avoiding multiple proceedings to adjudicate the same issue - but deferring to the criminal proceeding is not invariably required. [ 17 ] The Criminal Forfeiture Rule was recently applied in an estate proceeding to void a testamentary gift, in the absence of a criminal conviction, because the perpetrator committed suicide shortly after the testator’s death: Stacey .

However, the perpetrator’s death precluded a criminal prosecution, so the civil proceeding was not at risk of being duplicative or premature. [ 18 ] The public policy rule is exercised with restraint, as recognized in Cleaver v Mutual Reserve Fund Life Assn (1891), [1892] 1 QB 147 (Eng CA) : That the person who commits murder, or any person claiming under him or her, should be allowed to benefit by his or her criminal act, would no doubt be contrary to public policy.

But this doctrine ought not to be stretched beyond what is necessary for protection of the public . [ emphasis added ] [ 19 ] Mere negligence causing or contributing to the testator’s death, in the absence of criminal misconduct, probably does not engage the rule: O’Meara v Hall , 2006 ABCA 86 at paras 7-8 ; Jaworenko Estate (Re) , 2013 ABQB 517 at paras 24-25 . [ 20 ] With the benefit of these principles, I will now address the evidence. Deficiencies in the evidence

a) The facts supporting the alleged crime are sparse [ 21 ] In September 2012, Janet Magnuson commenced a relationship with Corey Anderson. They were subsequently married. [ 22 ] In May 2021, Janet Magnuson made a will purporting to leave the entire residue of her estate to Corey Anderson. Shortly afterwards, they took out a joint life insurance policy on the lives of each other providing for the payment of $2,000,000.00 in insurance proceeds to the survivor on the death of the other person. [ 23 ] In support of this application, the Personal Representative swore an Affidavit deposing to the following facts:

a) Janet Magnuson died on November 25, 2022, in what was originally thought to be a farm accident. The incident was investigated by the Royal Canadian Mounted Police (RCMP). The RCMP identified Corey Anderson as a person suspected of causing the death of Janet Magnuson.

b) The Personal Representative was “advised by the RCMP that shortly after Corey Anderson was identified as a suspect in the homicide of Janet Magnuson, Corey Anderson overdosed on drugs.”

c) The Personal Representative was “advised by K Division of the RCMP in Edmonton, Alberta that on Friday, December 16, 2022 Corey Anderson surrendered to the RCMP, confessed to causing the death of Janet Magnuson and was charged with First Degree Murder in respect thereto.” [ 24 ] The Personal Representative attached a newspaper

article to his Affidavit from the Edmonton Journal dated December 21, 2022. The relevant part states: “Wetaskiwin County resident Corey Anderson was arrested and charged with first degree murder. Anderson was remanded in custody.” [ 25 ] Based on this information, Mr. Magnuson believes Mr. Anderson is responsible for the death of Ms. Magnuson. No other evidence is offered about the circumstances of Ms. Magnuson’s death or the reasons for concluding that Mr. Anderson was criminally responsible and mentally competent at the time of her death. [ 26 ] The evidence does not indicate that Mr.

Anderson has pleaded or been found guilty by a court of any crime involving Ms. Magnuson’s death. Before me, counsel for the Personal Representative indicated that no finding of guilt has been entered in any criminal proceeding. [ 27 ] Mr. Anderson was served with notice of this application at the Edmonton Remand Centre but did not appear at the Chambers hearing.

b) The cause of death is based on hearsay evidence [ 28 ] Mr. Magnuson’s conclusion that Mr. Anderson caused the testator’s death is based on Mr. Anderson’s alleged confession to the RCMP, any inference that might be drawn from the insurance policy being taken out and his drug overdose, and the criminal charge. [ 29 ] The confession was not made to Mr. Magnuson personally. The confession was presumably given to a police officer and provided out of court. As it is being tendered for the truth of its contents, this evidence is hearsay. [ 30 ] Similarly, Mr.

Magnuson does not depose to any personal knowledge about the drug overdose. The circumstances of the overdose are not explained. If an overdose occurred, the information is hearsay. Mr. Magnuson also does not explain how he knows about the existence of the insurance policy or its terms. A copy is not appended to his Affidavit. As the Personal Representative of the Estate, he might have seen the policy, but that is not stated in his Affidavit.

[ 31 ] The criminal charge is offered as some evidence of the allegation to which it relates. No Indictment is before me. The existence of a criminal charge is also hearsay. [ 32 ] More fundamentally, a criminal charge is not persuasive evidence of the facts of the underlying allegation. The charge is an allegation, not proof. While the charge reflects someone’s assessment of possible evidence against Mr. Anderson, the evidence is largely undisclosed before me.

It is also trite law that a person is presumed innocent until proven guilty. [ 33 ] The Alberta Evidence Act , RSA 2000, c A-18 prescribes that a certificate of conviction for a crime may be tendered as evidence: ss 24 and 26. However, at this stage, Mr. Anderson apparently has not been convicted of anything. [ 34 ] Rule 13.18 of the Rules of Court sets out the kinds of information that can be included in an affidavit: 13.18

(1) An affidavit may be sworn (

a) on the basis of personal knowledge, or (

b) on the basis of information known to the person swearing the affidavit and that person’s belief.

(2) If an affidavit is sworn on the basis of information and belief, the source of the information must be disclosed in the affidavit.

(3) If an affidavit is used in support of an application that may dispose of all or part of a claim, the affidavit must be sworn on the basis of the personal knowledge of the person swearing the affidavit. [ 35 ] The effect of Rule 13.8(3) is that if an application may “dispose of all or part of a claim,” the affidavit used in support of the application cannot include hearsay evidence; it must be sworn on the basis of the personal knowledge of the affiant: Murphy v Cahi ll , 2012 ABQB 793 at para 25 [ Murphy ] ; From Estate , 2019 ABQB 988 at para 103 ; Moore v Wetaskiwin Friends and Horizons Training , 2022 ABKB 617 at para 34 [ Moore ] .

To rely on inadmissible hearsay evidence “is having no evidence at all; a litigant’s rights cannot be finally determined without evidence”: Murphy at para 25 . [ 36 ] The requirement that the supporting affidavit must include the personal knowledge of the affiant “embodies the common law rule against hearsay — an affiant must be capable of being tested by cross-examination on his or her own knowledge”: Attila Dogan Construction and Installation Co v AMEC Americas Ltd , 2015 ABQB 120 at para 60 [ Attila ].

It also ensures that the opposing party may cross-examine the affiant on their knowledge, testing the soundness of the evidentiary foundation for the application: Attila at para 62 . [ 37 ] Rule 13.18 demands that “the affiant know of a circumstance or fact through firsthand observation or experience, rather than learning of such circumstance or fact from some other person or source”: Attila at para 63 . [ 38 ] Hearsay cannot be used to support a final determination unless the evidence would be admissible at trial through an exception to the hearsay rule to prove the truth of the contents of the statement: Murphy at para 29 ; Klein v Wolbeck , 2016 ABQB 28 at para 15 ; Attila at para 81 . [ 39 ] In a

summary judgment application, Justice Graesser in County of Vulcan v Genesis Reciprocal Insurance Exchange , 2020 ABQB 93 stated at para 77 : Presumptively inadmissible hearsay may be admissible under Khelawon [ R v Khelawon, 2006 SCC 57 ], and it may be admissible for narrative purposes. However, my read of Weir-Jones is that neither party may rely on hearsay evidence on the substantive issues to be determined on a

summary judgment application, unless the hearsay can be brought within the exceptions described in Khelawon or other recognized exceptions to the hearsay rule. [ 40 ] The Alberta Court of Appeal subsequently explained that “some flexibility is required in interpreting Rule 13.18(3) and the use of hearsay affidavits in

summary judgment applications” particularly those involving estates: Saito v Lester Estate , 2021 ABCA 179 at para 12 . By “flexibility” the Court of Appeal meant that Rule 13.18(3) should not be read as an absolute bar to the use of hearsay evidence: Moore at para 35 . A “key consideration is whether the underlying source of the information is reliable and would be admissible at trial”: Goodswimmer v Canada (Attorney General) , 2017 ABCA 365 at para 33 , leave to appeal ref'd [2018] SCCA No 1 [ Goodswimmer ]. See also: Barry v Industrial Alliance Insurance and Financial Services Inc (IAF) , 2022 ABQB 265 at para 53 . [ 41 ] Here, the Personal Representative’s

summary judgment application is a final determination of Mr. Anderson’s claim, which requires personal knowledge. That requirement has not been satisfied. No exception to the hearsay rule is applicable.

The sparse evidentiary record does not demonstrate that the information is sufficiently reliable and would be admissible at a trial. [ 42 ] Moreover, even if hearsay was admissible for this application, the Affidavit would need to identify the underlying source of the information and belief: Goodswimmer at para 33 and Pure Environmental Waste Management Ltd v Lonquist Field Service (Canada), ULC , 2022 ABQB 30 at para 47 . [ 43 ] The Affidavit simply states that the information about Mr. Anderson admitting responsibility for the death of Ms. Magnuson came from K Division of the RCMP.

No details are provided about who at K Division provided that information, what position the person held, or to whom the admission of responsibility was made. Confessions to police frequently raise concerns about voluntariness and whether the confession is reliable: R v Oickle , [2000] 2 SCR 38 at paras 34-44 . In the absence of firsthand information about the circumstances under which the confession was made, its reliability cannot be properly determined. [ 44 ] The confession is also imprecise. Mr. Magnuson’s information is that Mr. Anderson confessed to causing the testator’s death.

The evidence does not explain whether he was admitting to culpable criminal conduct rather than something less blameworthy, such as negligence. The criminal charge might suggest an admission about criminal conduct, but another reasonable inference is that the

confession was inexact, and the police laid a charge based on other information (which is not before me for assessment). [ 45 ] Finally, nothing addresses Mr. Anderson’s mental state at the time of the alleged offence. [ 46 ] When seeking

summary judgment, the Applicant bears the initial burden of demonstrating that the claim has no merit based on facts proven on a balance of probabilities. Inadmissible and vague evidence does not meet the burden. [ 47 ] In light of my findings about the evidence, I need not consider whether the application is premature and should await the outcome of the criminal proceeding. Conclusion [ 48 ] The Personal Representative has not met the evidentiary burden to establish that the claim is without merit by operation of public policy. A

summary determination might be possible if Mr. Anderson is convicted of a crime, but no such finding has been made. [ 49 ] The application is dismissed. Heard on the 2 nd day of May, 2023. Written submissions received on May 10, 2023. Dated at Wetaskiwin, Alberta this 24 th day of May, 2023. Kevin Feth J.C.K.B.A. Appearances: Murray Engelking for the Applicant Corey Anderson Not appearing