The recent Saskatchewan King’s Bench decision in Gibb Estate (Re), is an example of the Court’s ability to render a document effective as a testamentary document, even if said document was executed without all the formal requirements of the Wills Act, 1996.

Factual background:

1. This matter concerned the Estate of William George Gibb (“Deceased”).
2. The Deceased had died on April 28, 2022. He had left a will executed June 29, 2018 (“Will”).
3. The Executrix, Leora Harlingten, from North Battleford, was one of two stepdaughters of the Deceased. The other stepdaughter was Helen Sawatsky of Saskatoon. They are named in the Will as the residual beneficiaries, to each receive an equal share of the Estate.
4. Paragraph 11 of the Will referred to the Deceased’s intention to create an attachment which would speak to his wishes for certain specific gifts. The Will said:
   11. I give specific gifts as are identified on attachment “A”, attached to my Last Will and Testament and such attachment is incorporated and is part of this Last Will and Testament.
5. The Deceased had left two different documents as “attachments” to his Will.
6. The issue before the Court was which of the two documents was the valid attachment to the Deceased’s Will, for the purpose of admitting the documents for probat

1. The original document (“Original Attachment”) attached to the Will did not make any reference to any specific bequest to Jessica Shaw (“Ms. Shaw”);
2. The Subsequent Attachment added a specific bequest of $20,000.00 to be given to “Jessi Shaw … the administrator of RBM the company I work for at the time of this writing.” 

7. In other words, the key practical difference was whether a bequest of $20,000 would go to Ms. Shaw, or not.
8. Shaw provided the below evidence:

1. That she had met the Deceased in early 2019 when she began working at RBM Architecture Inc. in Saskatoon where the Deceased worked. The Deceased became close to Ms. Shaw and her family, spending Christmases and special occasions together;
2. That while he was dying in hospital, the Deceased asked Ms. Shaw to retrieve and keep a binder of important documents from his house, which included his will and the attachment providing the $20,000 bequest to her. As well, the binder included email exchanges between the Deceased and Adsit.

9. After the Deceased’s death, Shaw handed the binder over to the Executrix. About a month later, Ms. Shaw received a letter from the Executrix’s lawyer demanding that monies the Deceased gifted to her be repaid. Ms. Shaw also learned that the Executrix was taking issue with the Deceased’s bequest to her of $20,000.
10. Melissa Widger (“Widger”), the daughter of the Deceased’s step-daughter, Helen Sawatsky, filed an affidavit in support of Ms. Shaw’s position. Widger recounted that the Executrix contacted her on March 27, 2022, to advise that the Deceased was diagnosed with cancer. The Executrix also told Widger that she was concerned that the Deceased had appointed Shaw his power of attorney and that he had changed his will.
11. The Deceased had also sent a November 23, 2020 email to his lawyer, Ms. Adsit, saying the below:

Hi Marilyn

Hope you are keeping safe.

Our entire office is working from home.

A definite different way to live.

I have attached a revised list to be attached to my will.

I have added Jessi to receive cash.

Please indicate receipt of this e‑mail.

If you have any questions call or e‑mail.

Thank‑you

William George Gibb 

Issue:

The issue was whether the Subsequent Attachment complied with s. 37 of the Wills Act, 1996, and should be given effect to as a testamentary instrument. If such document was a valid testamentary instrument, then the gift of $20,000 would go to Ms. Shaw.

Findings by the Court:

1. Was the Subsequent Attachment testamentary under s. 37?

Under s. 37 of the Wills Act, 1996, a court has the power to hold that a document that was not executed with all due formalities, is still valid if it embodies the testamentary intention of the deceased:

37 The court may, notwithstanding that a document or writing was not executed in compliance with all the formal requirements imposed by this Act, order that the document or writing be fully effective as though it had been properly executed as the will of the deceased or as the revocation, alteration or revival of the will of the deceased or of the testamentary intention embodied in that other document, where a court, on application, is satisfied that the document or writing embodies:

1. 1. the testamentary intentions of a deceased; or
   2. the intention of a deceased to revoke, alter or revive a will of the deceased or the testamentary intentions of the deceased embodied in a document other than a will.

For a document to be considered testamentary under s. 27, a Court must apply the following test: Did the document represent the fixed and final expression of intention of the deceased, as to the disposal of their property on death?

The Court in Gibb Estate determined that the Subsequent Attachment of November 23, 2020 was indeed testamentary. It set out a deliberate expression of the Deceased’s intention to dispose of his property by including the specific bequest to Ms. Shaw. The Subsequent Attachment thus met all the criteria required by s. 37.

2. Was the Subsequent Attachment actually created by the Deceased:

There was another raised by the Executrix. The Executrix submitted that Ms. Shaw had failed to prove that the Subsequent Attachment was actually made by the Deceased, and sent to Adsit from his own email account.

The Court ultimately found that the Deceased had clearly made the Subsequent Attachment. The Court noted the below facts:

1. Ms. Shaw stated in her affidavit that she did not have access to the Deceased’s work email. Only the Deceased and the owner of RBM Architecture Inc. would have had access to the Deceased’s email;
2. Widger’s affidavit evidence also supports the fact that it was the Deceased who sent the email to Adsit. The Deceased’s told Widger in April 2022 that he had added Shaw to his Will;
3. Moreover, the Court took notice that the Executrix had the full legal right to ask Ms. Adsit, in her role as counsel for he Deceased, to provide any evidence to suggest that the Subsequent Attachment did not come from the Deceased. The Executrix did not however obtain such evidence. The Court drew an adverse inference from this absence of evidence:

[26]    Adsit could have cleared up the issue as to whether she received the Subsequent Attachment from Gibb and knew it to be the document sent to her from Gibb. With no evidence filed by the Executrix on that matter, I must draw the adverse inference that the evidence on this point is clear. That is, Adsit received her instructions from Gibb. Shaw has proven on the balance of probabilities that the Subsequent Attachment setting out the specific bequest to her did indeed emanate from Gibb’s email.

Conclusion:

The Court held that Ms. Shaw had proven that the will with the Subsequent Attachment constituted the last will and testament of the Deceased to be admitted for probate.

The Court also made an order that Ms. Shaw should receive her solicitor and client costs, to cover her legal fees that she had incurred in this application. Such would be paid from the Estate assets:

[28]       Shaw seeks an order that her costs of this application be paid, on a solicitor‑client basis, out of the Estate…

[29]        I agree that Shaw’s costs should be awarded to her on a solicitor‑client basis. There was no dispute as to Gibb’s intention when he made the Subsequent Attachment. The Executrix’s allegation that it was not a document prepared by Gibb was completely unsupported in the evidence. Therefore, Shaw is awarded costs on a solicitor‑client basis, payable out of the Estate.

In making the above costs order, the Court referred to certain Saskatchewan case law which held that the “general rule of costs in estate litigation involving the interpretation of wills is that the parties’ costs are to be paid out of the estate.”

The practical effect of this costs order is significant. For context, the vast majority of all civil litigation in Saskatchewan, results only in partial costs orders for the winner. In other words, the winner is typically only awarded a very partial amount of costs from the other side. This means that the winner still is out of pocket to a large degree, in paying the legal fees of their own lawyers. This dilutes their final financial outcome, even if they win.

Here, the costs order above meant that Ms. Shaw would not be out of pocket for her legal fees, incurred in obtaining the ruling in her favor. It also meant that the Estate residual beneficiaries would have their residual property reduced by the amount of Ms. Shaw’s legal fees. Such costs order are still relatively common in Saskatchewan estate litigation, and show the unique way in which Courts continue to approach costs orders in estate litigation, as compared to general civil litigation.

The recent Saskatchewan Court of Appeal decision in Klaptchuk v Johnson is a reminder of the principle of devastavit, which forbids an executor from distributing estate assets in disregard of a creditor’s outstanding claim against the estate. 

That said, Klaptchuk also reminds us that an executor who is sued in devastavit, is entitled to obtain a ruling as to whether they should be relieved from liability (under s. 45 of the Trustee Act), if they erred but had nevertheless acted honestly. Moreover, Klaptchuk also reminds us that there must be clear evidence of what value existed in the estate, before a court should summarily determine (on affidavit evidence) that a devastavit has in fact occurred.

Factual background:

Klaptchuk arose out of an appeal brought by Sylvia Klaptchuk (“Ms. Klaptchuk”) and the Estate of Peter Klaptchuk (“Estate”) against the decision of a judge of (what was then) the Court of Queen’s Bench. The Chambers Decision had granted summary judgment in favour of certain judgment creditors (the “Judgment Creditors”), and had held that Ms. Klaptchuk was personally liable to such creditors for an unsatisfied judgment they had previously obtained against the Estate.

Some of the material facts included the below:

1. Peter Klaptchuk was the sole director, officer, and shareholder of two corporations: Ozonator Industries Ltd. (“Ozonator”) and Peter’s Sewer Service Ltd. (“PSS”);
2. On March 9, 2017, the Judgment Creditors obtained judgment in a civil action against Mr. Klaptchuk and Ozonator, in the amount of $160,000 (Johnson v Klaptchuk(9 March 2017) Regina, QBG 1001 of 2014 (Sask QB) (“Judgment”);
3. Eight days later, on March 17, 2017, Mr. Klaptchuk unexpectedly passed away.
4. Shortly after Mr. Klaptchuk’s death, on March 27, 2017, counsel for the Judgment Creditors sent a letter to Mr. Klaptchuk’s solicitor, Merrilee Rasmussen, K.C., notifying her of the Judgment and advising that they would hold off on any enforcement proceedings for a reasonable period of time, to allow Mr. Klaptchuk’s family to grieve his passing;
5. The Judgment Creditors’ counsel also requested that Ms. Rasmussen bring the Judgment to the attention of the representative of the Estate;
6. By April 27, 2017, Ms. Rasmussen had replied to the Judgment Creditors’ counsel, saying that Ms. Klaptchuk was the executrix of the Estate, and that she was in the process of settling the Estate’s assets and debts and developing a plan to retire the Judgment. However, the Judgment was never paid;
7. On August 24, 2017, a notice of change of shareholders for Ozonator was filed with the Director of Corporations. It named Ms. Klaptchuk as the sole shareholder for that corporation. Ms. Klaptchuk would later take the position that this transfer of shares had been made without her knowledge or authorization. Ozonator subsequently became inactive and was ultimately struck from the Corporate Registry;
8. Shortly after the Ozonator share transfer had taken place, Ms. Klaptchuk engaged new counsel, David MacKay, and arranged through him to transfer all of the shares in PSS to herself. The requisite notice, naming Ms. Klaptchuk as the sole shareholder for PSS, was filed with the Director of Corporations on October 3, 2017;
9. Although Mr. Klaptchuk’s will named Ms. Klaptchuk as executrix, Ms. Klaptchuk had never applied for a grant of probate or letters of administration. Nor had she renounced the appointment or given any explicit indication that she has refused to accept it. In addition to the transfers of shares mentioned above, Ms. Klaptchuk had taken other steps to administer the Estate, including paying Mr. Klaptchuk’s funeral expenses and his tax arrears, and by paying certain debts owed by PSS out of her own funds. She had also continued to operate PSS as a business;
10. On July 24, 2019, the Judgment Creditors commenced a civil action against Ms. Klaptchuk by filing a statement of claim. In it, the Judgment Creditors claimed the below, among other things:

1. That, even though Ms. Klaptchuk had not formally assumed the role of executrix, she had intermeddled in the estate property. Namely, she had taken it on herself to possess and administer estate property even though she had not been appointed as executor or administrator, and she had transferred Estate property to herself;
2. That Ms. Klaptchuk was liable for devastavit because she had transferred Estate property, namely, shares of the capital stock in Ozonator and PSS, and shareholder loans owned by Mr. Klaptchuk, to herself without first satisfying the Judgment.
3. That these transfers were fraudulent conveyances, as they had been transferred knowing that such actions would delay, defeat or hinder their enforcement efforts.

11. On August 12, 2021, the Judgment Creditors filed an application in the Court of Queen’s Bench, seeking summary judgment against  Klaptchuk and an order directing her to provide a full accounting for the Estate, and tracing any assets she had removed from it. This application led to the hearing that resulted in the Chambers Decision, which found her personally liable to the Judgment Creditors in the amount of $160,000.

Chambers Decision:

12. The Chambers Judge found that, despite the fact that Klaptchuk said that she never accepted the appointment as executrix, her conduct amounted to an acceptance of the role of executrix. The Chambers Judge found that she had exercised significant authority over the Estate assets and had paid Estate debts.
13. The Chambers Judge then found that even though Ms. Klaptchuk was aware of the unsatisfied judgment against the Estate, she distributed assets — including her late husband’s shares in two businesses — to herself, before paying the Estate’s lawful debts.
14. The Chambers judge concluded that Ms. Klaptchuk’s conduct constituted a devastavit. A devastavit is committed where an executor or administrator wastes the estate’s assets by mismanaging, misapplying, or neglecting them, contrary to the duty imposed on them as a personal representative of the estate. The types of conduct that can give rise to personal liability on the basis of devastavit include, among other things, paying legacies to beneficiaries before paying the estate’s lawful debts, where the result is to leave insufficient funds to satisfy the claims of creditors.
15. The Chambers judge also found that Ms. Klaptchuk had not fully and properly administered the Estate and, for that reason, was not entitled to rely on the common law defence of plene administravit, which is available when there are insufficient assets to satisfy a claim by a creditor against an estate.
16. The Chambers Judge found that Ms. Klaptchuk was aware of the existence of the Judgment and, thus, she had “distributed Estate assets to herself in disregard of the Judgment” and that such conduct “amounts to devastavit which renders her personally liable for the Judgment”.
17. With the above conclusion made, the Chambers judge determined that it was unnecessary to consider the Judgment Creditors’ alternative claim of fraudulent conveyance.
18. Accordingly, the Chambers Judge found that Ms. Klaptchuk was found to be personally liable for the entire amount of the unsatisfied judgment, being $160,000.

Issues on Appeal:

On appeal, Ms. Klaptchuk contended that the Chambers judge erred in several ways, including (without limitation):

1. By granting summary judgment in the face of disputed factual issues; and
2. By failing to consider s. 45 of The Trustee Act, 2009, SS 2009, c T-23.01 (“Trustee Act”), which says that if a trustee is liable for a breach of trust, by reason of their act or omission, a court may still relieve them from liability if the court finds that they acted reasonably and ought to be excused for the breach.

Determinations of the Court of Appeal:

The Court of Appeal reversed the Chambers Decision and determined that the Chambers Judge had erred in a number of ways.

Failure to consider whether it would be fair to relieve Ms. Klaptchuk of personal liability:

The Court of Appeal held that the Chambers Judge should have (but did not) consider whether it would be fair to relieve Ms. Klaptchuk of personal liability under s. 45 of the Trustee Act.

S. 45 reads below:

45 If a trustee is or may be personally liable for a breach of trust as the result of any act or omission of the trustee or of an agent of the trustee, the court may relieve the trustee either wholly or partly from personal liability if the court is satisfied that the trustee:

1. acted honestly and reasonably; and
2. ought fairly to be excused:

1. for the breach; or
2. for omitting to obtain the directions of the court in the matter in which it was committed.

The Court of Appeal held that there was material in the record before the Chambers Judge that should have prompted him to turn his mind to whether s. 45 of the Trustee Act was properly applied in this situation. For example:

1. Ms. Klaptchuk had explicitly raised the applicability of s. 45 of the Trustee Actin the brief of law she filed in opposition to the summary judgment application;
2. In her statement of defence, she had pleaded that she viewed the shares in PSS as having no value because the company was losing money and its only physical assets were “old trucks and a lease on a building”;
3. Ms. Klaptchuk had stated in her affidavit that she had paid various Estate debts and other expenses related to the administration of the Estate out of her own pocket and, because of that, also viewed herself as a creditor of the Estate;
4. Ms. Klaptchuk also deposed that she had taken control of PSS as “[Mr. Klaptchuk]’s wife and as a creditor of the company” (due to the outstanding shareholder loan), and not simply as executor for the Estate;
5. Ms. Klaptchuk argued that she believed, given the state of the business, the provisions in Mr. Klaptchuk’s will, and her status as a beneficiary, that the transfer of shares to her was authorized by the Business Corporations Act.

As the Chambers Judge did not consider s. 45, the Court of Appeal held that this was an error of law, and the decision could not stand.

There was a genuine issue requiring trial:

The Court of Appeal also found that it was an error to grant summary judgment, when there were contested material facts.

For context, the Chambers judge had found that there was no genuine issue requiring a trial, and that the action was suitable for summary judgment. The Court of Appeal disagreed.

The Court of Appeal held that the value of the Estate was a material issue. The reason why it is material is as follows. For example, the Chambers Judge had found Ms. Klaptchuk to be personally liable to the Judgment Creditors in the amount of $160,000. But what if the value of the entire Estate had not even been $160,000? If so, how could it then be equitable to find that Ms. Klaptchuk should pay the amount of any shortfall difference, when the underlying Judgment was not one rendered against her personally.

With “thin and contradictory” evidence on the issue of the value of the Estate, the Court of Appeal held that this matter should be remitted for trial. As a result, this was not an appropriate case for summary judgment.

Conclusion:

The Court of Appeal set aside the Chambers Decision in its entirety, and remitted it to the Court of King’s Bench. Ms. Klaptchuk received her costs of the appeal. The amount of costs awarded to her was reduced due to the fact that Ms. Klaptchuk had brought an unsuccessful application to introduce fresh evidence on appeal.

The recent Saskatchewan King’s Bench decision in Kowalinski v Kowalinski (Estate) is an example of how some estates can devolve into bitter quarrelling between the children of a deceased.

Factual background:

This matter arose out of the Estate of Maria Kowalinski (“Estate”). Maria (“Deceased”) had died on February 3, 2016. Since that time, her children had been engaged in costly and exhausting disputes over various aspects of the Estate. The Estate was still not fully distributed as a result, despite the fact that the deceased had died quite a few years previous.

There were four beneficiaries of the Estate, being

1. Maria’s son Terry;
2. Maria’s daughter Beth;
3. Maria’s daughter Iris; and
4. Maria’s grandson, Delaney.

A summary of some of the background is below:

1. Marie executed her Will on April 23, 2013. She appointed her three children, Terry, Beth and Iris as executors. It is clear that there had been a pattern of Maria loaning money to her children, particularly Terry and Iris. This habit of lending monies had led to suspicion amongst the other children;
2. At one point, Terry was meeting with Maria and, for some reason, discovered that there was a collateral mortgage registered against Maria’s home on Shea Crescent in Saskatoon in the amount of $60,000. Maria confirmed that a mortgage (“Iris Loan”) was granted in order to secure a $60,000 loan from Maria to Iris.
3. Terry took Maria to Maria’s lawyers.  The lawyers recommended that Maria prepare a holographic codicil removing Iris as an executor. This was done, and the codicil, written on October 7, 2015, read as follows:

This is a codicil to my will dated April 23, 2013. I remove Iris Theresa Kowalinski as an executor of my Esetate (sic).

Iris Theresa Kowalinski owes me $86,600.00 for amounts I have lent loand (sic) to her which remain unpaid. Therefor (sic) her chare (sic) shall be reduced by $86.600.00$ (sic) plus any adittional (sic) debt and interest (sic) which may apear (sic).

Any costs of collecting (sic) from Iris shall be charged to her share.

4. Unfortunately, it appeared that no one actually looked to discover that the Iris Loan had already been paid off and Maria was in a position to insist that the mortgage be discharged.
5. Terry thereafter began to take steps to place the Estate in a position where probate would not be necessary. Terry arranged for Maria’s tax-free savings account to be placed in his sole name. He also had title to Maria’s home registered in his and Maria’s names, as joint tenants. He also then confronted Iris about the line of credit and the mortgage on Maria’s home. Iris took that opportunity to explain to him that the line of credit had been paid in full. In due course, that mortgage was discharged.
6. Notwithstanding Maria’s declining health, Iris importuned Maria on January 30, 2016 for an additional $15,000 loan. The loan is recorded in a purple notebook, which was the manner in which Maria kept track of what her children owed her.
7. Maria passed away on February 3, 2016.

Will challenge allegations:

8. After Maria died, there were multiple court applications wherein Iris sought a trial to bring into question Maria’s mental capacity at the time of the codicil and to require that the Will be proved in solemn form. This was not successful.
9. There were also a number of applications engaging Terry and Beth and requiring them to disclose personal property at Maria’s residence on Shea Crescent. 
10. There was an application brought by Iris to permit cross-examination of Terry, Beth and Delany on their affidavits. This engendered significant legal fees, but created evidence which the Court described as of “only moderate probative value.”

Issue:

The Court determined that a number of issues required determination. This case comment focuses on the below issues:

1. Should Terry and Beth receive executors’ fees, and, if so, how much?
2. Who pays the parties’ respective legal expenses?
3. There are a number of personal items whose ownership is contested. How should those chattels be divided?

Findings by the Court:

1. Should Terry and Beth receive executors’ fees and if so, how much?

The Court found that there was no question that Terry and Beth put in a significant amount of time dealing with matters arising from the Estate. However, the Court held that much of their efforts had nothing to do with the administration of the Estate, but such efforts were rather in engaging in battle with Iris.

For context, in Saskatchewan, a court will often award compensation which in an amount which is a global 2-3% of the Estate. In this context, the Court ordered that Beth and Terry were to receive compensation on the lower end of the spectrum:

1. That Beth was to receive 1% of the Estate for her compensation;
2. That Terry was to receive 0.5% of the Estate.

2. Who pays the legal expenses?

Terry and Beth took the position that Iris was the primary cause of the entire litigation and that she should pay the costs of such legal expense.

The Court however found that there was plenty of blame to be spread around all three siblings. Accordingly, the Court ordered that each person shall bear their own costs.

However, the Court ordered that any future legal fees from this date onwards, shall be borne by the Estate, subject to being taxed by the Court.

3. There are a number of personal items whose ownership is contested. How should those chattels be divided?

The siblings were disputing how to divide certain chattels. These ranged from wood carvings, a nutcracker bowl to a black diamond pendent necklace. Unfortunately, in their respective briefs, each side creates a slightly different list of chattels in debate.

The Court held that there was no correct way to divide the chattels, but yet it was “a task that must be accomplished in order to bring the estate bickering to an end.”

The Court ultimately selected a unique and uncommon method of dividing up the chattels. The Court directed that the judge would draw names from a hat to determine ownership:

44         I conclude that “luck” is the best arbiter. I direct counsel to prepare a list of chattels that are in debate. Perhaps the siblings can agree on some so that we do not have a raft of items to deal with. However, I leave that to them.

45        In any event, when the list is prepared, it is to be forwarded to me through the Local Registrar and I will then set a date to draw names from a hat to determine ownership of the chattels in issue. The draw will take place in a courtroom and on the record.

Conclusion:

Any person who has hired a litigation lawyer in Saskatchewan knows that the legal fees to go to court (and prepare written evidence and argument) are significant. For any thoroughly disputed matter, the legal fees will easily get into the five figures for each side.

Despite this, estate disputes can often be extremely controverted, because there is an understandable emotional dynamic, when one family member perceives that there are questions of whether their beloved love one (usually a parent) was taken advantage of, or whether another sibling is trying to get more than their fair share.

Kowalinski reminds us that such disputes, even when the positions are sincerely held, may not result in an outcome that all parties (or, at the very least, the Court) may consider to be proportionate to the time and legal cost of litigation. However, to be candid, this problem shows no sign of resolving itself. So long as there are situations in which siblings distrust each other, and there is some murkiness as to exactly what a deceased parent intended for their money and estate, emotional estate disputes will continue to exist.

One proactive cure for this, is for persons to ensure better communication with their own children or estate beneficiaries, during their life. If the Deceased in this situation had sat all of her children down, and calmly explained exactly who had received what monies from her in the past, and what the Deceased nevertheless wished for her Estate in future, some of this litigation may have been avoided.