Recent Case Highlights the Importance of Having a Will

Fri, 2015-11-06 10:44 -- mcleod_admin
Friday, November 6, 2015

The Importance of Having a Will: Peters v. Peters Estate, 2015 ABCA 301

Ileen Peters died without a Will (or intestate) in 2013, and her husband, Lester Peters, died intestate in 2009. They had one biological child together, the respondent. Lester had four daughters from a previous marriage, the stepdaughters of Ileen, and the appellant was one of Ileen’s stepdaughters. After Lester’s passing, all of the children agreed that his entire estate should go to Ileen.

The appellant wanted an equal division of the net proceeds of Ileen’s estate among the five of them. The chambers judge dismissed the application, holding that a stepchild was not a “descendant” for the purposes of distributing an intestate estate in accordance with sections 65 and 66 of the Wills and Succession Act (“WSA”).

The issues on appeal were as follows:

  1. The trial judge erred in his interpretation of the WSA;
  2. The trial judge erred in failing to find a secret trust; and
  3. The trial judge was incorrect in finding that none of the stepchildren were unable to earn a livelihood by reason of mental or physical disability.

The first two issues were reviewed for correctness, and the third was reviewed for palpable and overriding error.

As to the first issue, the Court of Appeal confirmed that stepchildren are not descendants within the meaning of sections 65 and 66 of the WSA. This is supported by the long held idea that stepchildren should be excluded from inheriting the estate of an intestate stepparent. The Alberta Law Reform Institute (the “ALRI”) continues to support this exclusion, describing the relationship between stepchildren and their stepparents to be “too variable”. Despite recent court decisions holding in favor of stepchildren inheriting in certain situations, all such cases dealt with families that had Wills to rely on to determine intention.

As to the second issue, the Court of Appeal found that no secret trust was created between the deceased and the stepchildren. The Court was unable to identify the elements of communication between the deceased and the respondent or acquiescence on the part of the respondent so as to satisfy the requirements of a secret trust.

As to the third issue, the Court of Appeal held that there was no evidence to support any allegation that the stepchildren were unable to earn a livelihood by reason of mental or physical disability, and in any event, we question whether or not claim is possible where the claimant is not a “family member” as defined within the meaning of the WSA.

In conclusion, the appellant failed on all three issues. Her argument was based on what she perceived as the unjust and unfair result of the trial judge’s decision. The Court of Appeal quoted the trial judge, stating that “this case is an example of the personal difficulties and harm to relationships that can occur when an individual does not have a Will”.

This recent Court of Appeal case yet again highlights the importance of having a Will, especially in blended family situations.

For further information please contact the authors, Aaron Bickman at 403.873.3734 or any member of our Wills & Estates Group.

Author: 
Aaron Bickman