Kirst Estate (Re), 2019 ABQB 767 (CanLII); Kirst Estate (Re), 2020 ABCA 233 (CanLII)
The Alberta Court of Appeal recently dismissed an appeal of a decision based on the meaning of a provision in a holograph will.
The decision is not especially complex, but may be of interest to those of us who spend an inordinate amount of time thinking in detail about the specific meaning of words.
It is also especially noteworthy since the trial decision cites WEL Counsel, Albert Oosterhoff in the Professor’s characterization of the effect of a condition subsequent on a provision in a will.
The testator (“William”) had executed a holograph will with the following words:
Last Will & Testament
I, William J. Kirst Jr
Leave everything to the surviving children, Dubhe, Heidi, Josh, TWIG (Forest), Tracy, Alexander & Whitehorn.
Things to be kept as they are, and sold if they want, by the individuals.
Tracy Booth & Josh Kirst Whitehorn Kirst “WJK”
Things may be sold if agreed by all, especiall [sic] Kirst Exploration & Kirst Photographs equipment.
Whitehorn can live in the house for awhile, to be determined by Him and his brothers + sisters.
The litigation primarily concerned the meaning of the wording, “for awhile,” and the issue of how long the Appellant (“Whitehorn”) could remain in the house.
Whitehorn had argued before the trial judge that William had intended that Whitehorn be allowed to remain in the house indefinitely. He claimed that William had expressed a consistent intention to “leave the home to” Whitehorn, in at least the sense that Whitehorn would be allowed to continue to live there.
Another of William’s children, who supported Whitehorn’s position, testified that William “valued family over inheritance,” and “believed that no one should be displaced as a consequence of a loved one’s death, nor should someone receive a windfall,” but rather that, “things should stay the same.”
Some of Whitehorn’s siblings argued that “for awhile” meant “for a short period of time, sufficient to allow Whitehorn to get his affairs in order, and, to vacate the house so that it could be sold and the proceeds distributed.” They claimed that William had expressed a consistent intention that all of his children would be treated equally after his death.
Both the trial judge, and the Court of Appeal referred to the four principles of interpretation described in Hicklin Estate v Hicklin:
- that a will must be interpreted to give effect to the testator’s intention;
- it must be read in its entirety;
- the court must assume that the testator intended words to have their ordinary meaning unless there is a compelling reason not t; and,
- the court may canvass extrinsic evidence that will assist it to ascertain the testator’s intention.
The evidence that the siblings provided was conflicting, and did little to assist the trial judge.
The evidence appeared to indicate that William had said different things about his estate plan to different people at different times.
The trial judge’s analysis focused on the wording of the will, and its “natural and ordinary meaning.”
Citing Oosterhoff on Wills in support of this finding, the trial judge found that the words “to be determined by Him and his brothers + sisters” created a condition subsequent with regard to Whitehorn’s entitlement to remain in the house.
This entitlement vested on William’s death, but remained conditional on an agreement between Whitehorn and his siblings. William’s “clear and unambiguous intention” was that the duration of “awhile” would be decided by this agreement. The judge declined to find a life estate in favor of Whitehorn, since William had not written that Whitehorn could remain in the house for his lifetime.
With the siblings unable to agree on how long “awhile” would be, the trial judge found that the condition subsequent could not be satisfied, and, referred the matter to the case management judge to determine when Whitehorn would need to vacate the house.
The Court of Appeal agreed that the trial judge had applied the appropriate principles, and that the “natural and ordinary meaning” of “awhile” was not an indefinite amount of time to be decided solely by Whitehorn. Whitehorn did not prove that the trial judge had committed any reviewable error.
The Court of Appeal’s description of the trial judge’s finding of a condition subsequent was that, “Whitehorn’s entitlement to remain in the home vested on his father’s death, but, was subject to the condition that the gift would terminate as agreed by the siblings.”
Whitehorn also challenged the case management judge’s decision that he, instead of the estate, should pay ongoing and outstanding bills for telephone, internet, and telecommunications service. On this, the Court of Appeal found that:
The case management judge’s order directed that costs associated with the preservation of the home, being the main asset in the estate, be paid by the estate. This included water, power and the property taxes. The Shaw internet and telephone bills are not necessary for the preservation of the asset and there is no reviewable error in the case management judge’s decision that Whitehorn ought to pay for these.
 2019 ABCA 136
 8th edition (Thomson Reuters, 2016)