Slater Estate (Re), 2022 ABKB 859

Court of King’s Bench of Alberta Citation: Slater Estate (Re), 2022 ABKB 859 Date: 20221222 Docket: SES01 125138 Registry: Calgary Court File Number SES01 125138 Court Court of King’s Bench of Alberta (Surrogate Matter) Judicial Centre Calgary Estate Name Ronald James Slater Applicant (Plaintiff) Janice Lynn Harding, in her capacity as Personal Representative of the Estate Respondent (Defendant) Estate of Carole Jean Scovil _______________________________________________________ Decision of the Honourable Justice E.J.

Funk _______________________________________________________ Introduction [ 1 ] This matter came before me in morning Chambers as an application for advice and direction brought by the personal representative of the estate of Ronald James Slater. [ 2 ] In his will, the Deceased bequeathed “all investments and bank accounts” to his two children.

Years before executing this will, the Deceased designated certain RRIF and RRSP accounts to the benefit of his common law partner, now also deceased. [ 3 ] The Applicant seeks a direction that by operation of the words “all investments and bank accounts” in the will, these RRIF and RRSP accounts are brought within the Deceased’s estate, to be distributed according to the provisions of the will.

[ 4 ] The estate of the Deceased’s common law partner, Ms. Scovil, has not been administered and it appears Ms. Scovil has no surviving descendants to either make a claim to nor to administer her estate. As such, no one appeared on behalf of her estate to participate in this application. [ 5 ] The issue comes down to whether the will complies with s 71 of the Wills and Succession Act to effectively revoke the earlier designations in favour of Ms. Scovil and create a new designation in favour of the Deceased’s children. [ 6 ] On the evidence before me, and for the reasons below, I am unable to resolve this issue.

Instead, I direct this matter be set down for a Special Chambers application for further advice and direction. I further direct the Applicant to give the Public Trustee and Minister Notice of that further application. Background [ 7 ] The Deceased and Ms. Scovil lived together for many years prior to the Deceased’s passing in 2017. Ms. Scovil passed away three months after the Deceased. [ 8 ] Many years before his passing, the Deceased opened the RRIF and RRSP accounts that form the basis of this application. At the time of opening these accounts, he designated Ms.

Scovil as the beneficiary. [ 9 ] Six months before his passing, the Deceased executed his holographic will. Ms. Scovil is not included as a beneficiary under this will. It is unclear on the materials before me if the Deceased and Ms. Scovil were still living together at this time. [ 10 ] In his will, the Deceased revoked “all former wills and codicils”. He also bequeathed “all investments and bank accounts” to his two children. A Grant of Probate was issued in 2018 and the Deceased’s estate has been fully administered, save for the funds in these RRIF and RRSP accounts.

The balance of these accounts is currently approximately $350,000. [ 11 ] The question arises as to whether the estate of Ms. Scovil is entitled to receive the funds from these accounts, pursuant to the beneficiary designations.

Or, whether the will revokes the earlier designations and now designates the RRIF and RRSP accounts to the benefit of the Deceased’s two children. [ 12 ] To answer these questions, a determination must be made as to whether the revocation of all “former wills and codicils” refers to the RRIF and RRSP accounts, either generally or specifically, as required by s 71(6) of the Wills and Succession Act .

The Applicant provided no submissions in relation to the revocation clause in the will and the operation of s 71(6) of the WSA . [ 13 ] A further determination must be made as to whether the words “all investments and bank accounts” is a reference to these RRIF and RRSP accounts, either generally or specifically, as required by s 71(5) of the Wills and Succession Act. I received no evidence as to whether these RRIF and RRSP accounts were the Deceased’s only investments and bank accounts, or if he also held other accounts. [ 14 ] If the earlier beneficiary designations in favour of Ms.

Scovil are held to be unaffected by the will, this would trigger the provisions of the Public Trustee Act dealing with unclaimed property and the provisions of the Unclaimed Personal Property and Vested Property Act dealing with unclaimed intestate estates. The Public Trustee and Minister were not given Notice of this application. [ 15 ] Finally, the Applicant has raised the issue of whether the estate of Ms. Scovil should have a litigation representative in this matter. The Applicant suggests the appointment of a litigation representative would be an unnecessary expenditure of resources.

Does the will comply with s 71 of the WSA to the effect that the earlier beneficiary designations are revoked, and new designations are created? [ 16 ] As stated, the issue here is whether the will complies with s 71 of the Wills and Succession Act to effectively revoke the previous beneficiary designations in relation to the RRIF and RRSP accounts and create a new designation in favour of the Deceased’s children. Relevant law [ 17 ]

Part 4 of the Wills and Succession Act deals with Designations of Beneficiaries under Plans. Included as a definition of a “plan” under s 71(1)(

d) is: (iii) a registered retirement savings plan or registered retirement income fund as defined under the Income Tax Act . [ 18 ] As such, there is no question the RRIF and RRSP funds that form the basis of this application are ‘plans’ for the purpose of s 71 of the Wills and Succession Act. [ 19 ] Subsection (2.1) allows a participant to designate a person to receive a benefit payable under a plan on the participant’s death, (

a) by instrument signed by the participant, or (

b) by will. By operation of this subsection, the Deceased designated, by instrument, Ms. Scovil to receive the benefits payable under these plans upon his death. [ 20 ] Subsection (2.1) also provides that a designated benefit may be revoked either by instrument or by will. [ 21 ] Subsection (5) states that a designation in a will is effective only if it refers to the plan either generally or specifically. [emphasis added] [ 22 ] Under subsection (6), a revocation in a will of a designation made by instrument is effective to revoke the designation made by the instrument only if the revocation refers to the plan either generally or specifically . [emphasis added]

[23] Subsection (7) states that a later designation revokes an earlier designation to the extent of any inconsistency. [24] In Hayduk v Gudz, 2022 ONSC 2249, the Deceased’s will directed the transfer of the balance of her RRIF account into aseparate testamentary trust for the sole benefit of her great granddaughter.

In so doing, the will referred to a Nesbitt Burns RRIF accountat the Bank of Montreal and included a specific account number. [25] On her death, it was learned the Deceased had an RRIF account at the Bank of Montreal, but it was not a Nesbitt Burnsaccount, and it had a different account number from that listed in the will. Years before executing her will, the Deceased designated herdaughter as the beneficiary of this RRIF. The will did not specifically revoke this earlier designation. [26] The Court concluded the designation in the will replaced the earlier beneficiary designation.

In resolving the matter in thisway, the Court relied on its ability to interpret the will to try to give effect to any bequests, where reasonably possible on the language ofthe will, including correcting an inaccurate description of a gift: Hayduk, at paras 1-7. [27] On the evidence before the Court, it appeared the Deceased confused the account numbers when her will was prepared. There was no evidence the Deceased had any other RRIF accounts. She never had any accounts with Nesbitt Burns.

On this evidence,the Court concluded the Deceased intended to create a trust in favour of her great granddaughter from the funds in her RRIF account. With this, the Court held the designation in the will was valid: Hayduk, at paras 8-11 [28] Turning to the relevant provisions of the Succession Law Reform Act, the Court noted the provisions of s 52(2) whereby “alater designation revokes an earlier designation, to the extent of any inconsistency”.

Noting the detailed instructions in the will withrespect to setting up a trust for her great granddaughter, along with the relevant statutory and jurisprudential authorities, the Courtconcluded that s 52(2) applied to the effect that the designation in the will revoked the earlier designation, Hayduk, at paras 12-21. [29] In Laczova v House, (ONCA), the Deceased had purchased RRSPs with two banks throughout her life. She designated four family members as the beneficiaries of these plans.

Shortly before her death, the Deceased executed a holographicwill, in which she listed all of her assets, including reference to these two plans. The will included bequests to the four family membersalong with 18 other beneficiaries, mostly charitable organizations. When she died, the estate trustee took the position that the willrevoked the earlier designations and that the specific bequests in the will should prevail. [30] The will specifically referred to the RSP accounts, along with the banks that held these accounts and the account balances.

On the evidence before the Court, it was clear the Deceased also held other investment accounts at these banks. In her will, theDeceased listed 22 charitable beneficiaries and set out specific amounts for each beneficiary to receive.

The will contained no revocationclause; it contained no clause granting all property to the estate trustee to carry out the instructions in the will; it did not vest in anyonethe RSPs, or any of the other assets: Laczova, at paras 6-9. [31] In the application for direction, the Court found the beneficiary designation and revocation requirements of the SuccessionLaw Reform Act had not been met and declared the earlier beneficiary designations prevailed, unaffected by the will: Laczova, at para 10. [32] On appeal, the Court was prepared to assume, for argument’s sake, that the simple listing of the RSPs in the will met thestatutory requirements of relating “expressly to a plan, either generally or specifically”, as required by s 51(2) of the Succession LawReform Act.

The Court was not prepared to find the will contained any designation that engaged the provisions of ss 51 and 52 of theSLRA. [33] Noting the definition in the Act of “participant” as “a person who is entitled to designate another person to receive a benefitpayable under a plan on the participant’s death”, the Court held, by its terms, the will did not designate the two accounts in question toany person. Referring to s 53(

a) of the SLRA, which discharges a person administering a plan upon paying the benefit to a person, theCourt questioned how any bank when presented with this will would properly administer its provisions: Laczova, at paras 18-21 [34] In determining whether the revocation in the will was effective to revoke the earlier designations, the Court noted the wordingof s 51(2) that requires that a revocation in a will must relate expressly to the designation, either generally or specifically. Nowhere inthe will was there any expression that related to the earlier designations in favour of the Deceased’s family members.

The Courtconcluded that a revocation in a will that fails to expressly relate to the earlier designation made by instrument fails to accomplish thatpurpose. While not disputing the Deceased’s intention as expressed in the will, the Court held that implementing those intentions couldnot be achieved at the expense of ignoring the language of the statute. The relevant provisions of the SLRA set out the requirements tomeet to render effective a designation in a will or a revocation in a will.

As the will did not meet these statutory requirements, it did noteffectively revoke the earlier beneficiary designations: Laczova, at paras 28-33 [35] In Alger v Crumb, 2021 ONSC 6076, the Deceased executed beneficiary designations in relation to her RRIF and TFSAaccounts prior to executing her will.

The will did not reference these accounts but did contain a revocation clause relating to “all Willsand Testamentary dispositions of every nature and kind whatsoever made by me heretofore made”. [36] One of the Deceased’s children took the position that his sisters were to receive no more than what was specificallybequeathed to them under the will, and nothing from the RRIF and TFSA accounts, as they were not named in the beneficiarydesignations for those accounts. [37] The Court relied on s 52 of the Succession Law Reform Act, which provides that beneficiary designations for plans such asRRIFs and TFSAs can be revoked only if the will specifically refers to revoking them.

Noting the will did not refer specifically to eitherthe RRIF and TFSA accounts, nor to their beneficiary designations, the Court declined to find the revocation clause in the will acted torevoke the previous designations. While stating that beneficial designations fall under the broad category of “testamentary dispositions”,the Court held it would be a stretch to find that mentioning the broad category amounted to “expressly” referencing the RRIF or TFSAdesignations, either generally or specifically: Alger v Crumb, at paras 7- 13. Analysis

[ 38 ] The Applicant seeks a direction that the RRIF and RRSP accounts form part of the Deceased’s estate to be distributed under the provisions in the will. The Applicant submits the words in the will bequeathing “all investments and bank accounts” satisfy the requirement of s 71(5) of the Wills and Succession Act with the effect that the will refers to the RRIF and RRSP accounts “either generally or specifically”, thereby bringing those accounts within the Deceased’s estate.

The Applicant urges me to apply s 71(7) of the WSA to the effect that this designation in the will revokes the earlier designations. [ 39 ] For the reasons below, I am not able to give the direction the Applicant seeks and instead direct this matter to a Special Chambers application for further advice and direction at which the Applicant may provide further evidence and submissions on the application of s 71 of the Wills and Succession Act to this will. [ 40 ] Unlike the facts in Hayduk , where the will described the RRIF account in sufficient detail that the Court was satisfied there was an error in drafting, the will before me only refers to “all investments and bank accounts”, without any reference to account numbers or banks at which these accounts are held.

There is no evidence before me if these accounts were the Deceased’s only investments and bank accounts. On this evidence, and lack of evidence, I am not satisfied that I can use s 71(7) of the Wills and Succession Act in the way the Applicant suggests. [ 41 ] What’s more, before s 71(7) could apply in this way, the Court must be satisfied that the words in the will bequeathing “all investments and bank accounts” create a designation of the RRIF and RRSP accounts by referencing these accounts “either generally or specifically”, as required by s 71(5) of the Wills and Succession Act .

As stated, there is no evidence before me these RRIF and RRSP accounts were the Deceased’s only investments and bank accounts, or whether he also had other accounts.

Without further evidence and submissions on this point, I am unable to make that determination. [ 42 ] An issue not raised by the Applicant was the operation of s 71(6) of the Wills and Succession Act which reads “a revocation in a will of a designation made by an instrument is effective to revoke the designation made by the instrument only if the revocation refers to the plan either generally or specifically . ” [emphasis added] [ 43 ] The will here revoked “all former wills and codicils” without reference to these RRIF and RRSP accounts, or their earlier beneficiary designations.

To me, this seems similar to the facts in Alger where the Court was not satisfied that a revocation of “all wills and testamentary dispositions” had the effect of revoking earlier specific beneficiary designations.

Again, without submissions on this point, I decline to make any determination in relation to the application of s 71(6) of the Wills and Succession Act . [ 44 ] For all of these reasons, I direct this matter to a Special Chambers application for further advice and direction on the issue of whether this will complies with the relevant provisions of s 71 of the Wills and Succession Act to the effect that the will revokes the earlier beneficiary designations in favour of Ms. Scovil and creates new designations in favour of the Deceased’s children. Should the Court dispense with the requirement that Ms.

Scovil’s estate has a litigation representative? [ 45 ] The Applicant suggests it would be an unnecessary expenditure of court resources to appoint a litigation representative in relation to the estate of Ms. Scovil. For the reasons below, I disagree and find that Ms. Scovil’s estate must have a litigation representative in this matter. Relevant law [ 46 ]

Part 2 of the Rules of Court deals with Litigation Representatives. Rule 2.11 reads, “ unless otherwise ordered by the Court , the following individuals or estates must have a litigation representative to bring or defend an action or to continue to participate in an action, or for an action to be brought or continued against them :” (

e) an estate for which no personal representative has obtained a grant under the Surrogate Rules (AR 130/95 ) and that has an interest in a claim or intended claim . [emphasis added] [ 47 ] Rule 2.13 reads, “ if an individual or estate is required to have a litigation representative under Rule 2.11 , a person is an automatic litigation representative for the individual or estate if the person has authority to commence, compromise, settle or defend a claim on behalf of the individual or estate under any of the following: (

d) a grant or an order under the Surrogate Rules (AR 130/95 ) . [emphasis added] [ 48 ] Sections 15 and 16 of the Public Trustee Act give the Public Trustee authority to apply for and obtain a grant of administration in relation to Ms. Scovil’s estate or to otherwise elect to administer her estate. Here, the Public Trustee has taken no action in relation to Ms. Scovil’s estate. [ 49 ] Rule 2.15 allows the Court to appoint a litigation representative. Rule 2.16(1) limits this ability to circumstances involving, among others, the administration of the estate of a deceased person; the

interpretation of a written instrument; and the

interpretation of an enactment. [ 50 ]

Section 69 of the Wills and Succession Act deals with the distribution of intestate estates with no heirs. It incorporates by reference provisions of the Public Trustee Act and Unclaimed Personal Property and Vested Property Act . [ 51 ]

Section 11 of the Public Trustee Act applies to unclaimed property and includes provisions for how long the Public Trustee is to hold unclaimed property and what to do with that property upon the expiration of those periods or when a person makes a claim to such property. [ 52 ]

Section 33 of the Unclaimed Personal Property and Vested Property Act deals with estates and creates a mechanism by which unclaimed property of an intestate estate vests in the Crown.

Analysis [ 53 ] Ms. Scovil’s estate clearly has an interest in this action. No one has obtained a grant in relation to her estate. By operation of Rule 2.11, her estate must have a litigation representative, unless the Court orders otherwise. [ 54 ] I question whether the authority granted in ss 15 and 16 of the Public Trustee Act automatically makes the Public Trustee the litigation representative of Ms. Scovil’s estate, by operation of Rule 2.13.

However, without hearing from the Applicant nor from the Public Trustee on this point, I decline to make that determination here. [ 55 ] If the earlier beneficiary designations in favour of Ms. Scovil are held to be unaffected by the will, then her estate would be entitled to receive the benefits of these RRIF and RRSP accounts. Since there appear to be no heirs to her estate, the Public Trustee would most likely receive and hold these funds, by operation of the relevant provision of the Public Trustee Act .

Ultimately, these funds may be transferred to the Minister, by operation of the Unclaimed Personal Property and Vested Property Act . [ 56 ] Given this possible outcome, I find that Rule 2.11 not only operates such that Ms. Scovil’s estate must have a litigation representative, but that it imperative that her estate be represented in this action. [ 57 ] Determining the issue of whether the Deceased’s will complies with s 71 of the Wills and Succession Act involves questions surrounding the administration of estates;

interpretation of enactments; and

interpretation of instruments. By operation of Rules 2.15 and 2.16, the Court can appoint a litigation representative. [ 58 ] Given the statutory schemes within the Wills and Succession Act and Public Trustee Act , the Public Trustee would appear to be the most likely and appropriate litigation representative. As the Public Trustee did not have Notice of this application, I decline to appoint the Public Trustee as litigation representative. [ 59 ] Instead, I direct the Applicant to provide the Public Trustee with Notice of the application for further advice and direction.

Should the Public Trustee wish to make submissions as to why it should not be the litigation representative in relation to the estate of Ms. Scovil, it may do so by bringing this matter before the Court in morning Chambers in advance of the application for further advice and direction. [ 60 ] Should the Public Trustee fail to bring any objection in morning Chambers, it will presumptively be the litigation representative for Ms. Scovil’s estate in the application for further advice and direction.

Should the Minister be given Notice of the application for further advice and direction? [ 61 ] The Minister was not given Notice of the application before me, and there was no reference to the possible application of the Unclaimed Personal Property and Vested Property Act . Relevant law [ 62 ]

Part 3 of the Unclaimed Personal Property and Vested Property Act deals with estates. Under s 33, a personal representative of an intestate estate must transfer the estate, or portion of it, to the Minister if any portion of the estate remains unclaimed after two years following the grant of administration. Upon such a transfer to the Minister, the property vests in the Crown. Analysis [ 63 ] As discussed, in the event that the beneficiary designations in favour of Ms. Scovil are held to be unaffected by the will, then her estate would be entitled to receive the benefits of these RRSP and RRIF accounts.

There appear to be no living descendants eligible to receive her estate. By operation of the various statutory provisions already discussed, her estate may end up vesting in the Crown, pursuant to the Unclaimed Personal Property and Vested Property Act . [ 64 ] Because of the possible application of the UPP & VP Act, I direct the Applicant to give the Minister Notice of the application for further advice and direction. Conclusion [ 65 ] For all of these reasons, I direct: 1.

This matter be set down for a Special Chambers application for further advice and direction on the issue of whether s 71 of the Wills and Succession Act applies to this will to the effect that the will revokes the earlier beneficiary designations in favour of Ms. Scovil and creates new designations in favour of the Deceased’s children such that the RRIF and RRSP accounts are brought within the estate to be distributed according to the provisions in the will. 2. Because I have determined that Ms.

Scovil’s estate must have a litigation representative, and that the Public Trustee is the most likely litigation representative for her estate, I direct the Applicant to give Notice of that application for further advice and direction to the Public Trustee, together with a copy of these Reasons. 3. Should the Public Trustee take the position that it should not be the litigation representative of Ms. Scovil’s estate, it can bring its objection to morning Chambers in advance of the application for further advice and direction and upon giving Notice to the Applicant.

If the Public Trustee fails to bring such an objection, it will be presumed that the Public Trustee will act as litigation representative at the application for further advice and direction. 4. Because of the possible application of the Unclaimed Personal Property and Vested Property Act , I direct the Applicant provide Notice of the Special Chambers application to the Minister, together with a copy of these Reasons;

5. I further direct the Applicant, the Public Trustee, and the Minister (should the Minister choose to participate) to provide written briefs to the Court in relation to direction #1 in advance of this Special Chambers application. [ 66 ] I am neither seized with nor disqualified from the application for further advice and direction. [ 67 ] With respect to costs, given that an

interpretation of the provisions of the will and relevant statutory authority was required, this appears an appropriate case for payment of costs out of the estate, or if already distributed, out of the funds from the undistributed RRIF / RRSP accounts. Heard on the 25 th day of November, 2022. Dated at Calgary, Alberta this 22 nd day of December, 2022. E.J. Funk J.C.K.B.A. Appearances: Gregory J. Kaladeen for the Applicant No appearance for the Respondent