Background
Joe Mast died on August 24, 2021 (the “Deceased” or “Estate”), with a Will dated 2016 (the “Will”). Joe was survived by his five children, Trevor, Ronald, David, Renate and Ramona.[1]
Trevor and Ronald were appointed co-Estate Trustees of the Estate (the “Estate Trustees”). Clause 3(f) of the Will devised farmland (Parcels A, B, C and D) to Trevor and Ronald conditionally on them paying $75,000 each to their remaining siblings, David, Renate, and Ramona (the “Remaining Siblings”), within a year of the Deceased’s death.[2] Further, the Will outlined that if the money was paid, each of the Remaining Siblings would be entitled to share 1/3 respectively in the residue of the Estate (which consisted primarily of the farmland).[3]
In May 2017, the Deceased made inter vivos transfers of Parcel A to Trevor and Parcel B to Ronald.
By August 2022, one year following the Deceased’s death, a grant of probate was still not issued. Trevor explained that the total $450,000 to satisfy Trevor and Ronald’s payment obligations would be transferred to a lawyer in trust until the Will was probated – citing delays due to the covid pandemic.[4]
One week prior to the one year anniversary of the Deceased’s passing, Trevor and Ronald paid the $450,000 into trust with the Will drafting lawyer Mr. Driessen.[5] Mr. Driessen proceeded to advise David, Renate and Ramona that the money was paid into trust and “would be used to fulfil the obligations of Trevor and Ronald upon transfer of the applicable titles to them”.[6]
Litigation History
Notably, none of the Remaining Siblings filed an application to compel the Estate Trustees to release the $450,000 from trust. David, on the other hand, filed a caveat in September 2022 and an Application to challenge the validity of the Will, while pleading in the alternative, that the Estate Trustees failed to comply with Clause 3(f) of the Will (“David’s Application”).[7]
David’s Application, inter alia, contended that the Will was contrary to public policy by excluding him as a result of his sexuality, religious beliefs, and divorce and excluded Renate and Ramona based on gender; that the Estate Trustees unduly influenced the Deceased; and sought a determination of the inter vivos transfers of Parcel A and B, by claiming unjust enrichment at the hands of the Estate Trustees forming either a constructive or resulting trust. In November 2024, David ultimately withdrew the caveat and his will challenge.[8]
In April 2023, the Court of King’s Bench issued and Order appointing Trevor and Ronald as administrators of the Estate pending the litigation, while also freezing the Estate.[9]
The special chambers justice ultimately found that Trevor and Ronald did not satisfy their payment obligations under Clause 3(f) of the Will and directed the determination on the inter vivos transfers to trial.[10] The justice implicitly found that Trevor and Ronald acted on improper advice from Mr. Driessen by paying the $450,000 into trust, and that the money had to be paid directly from Trevor and Ronald to their siblings to satisfy Clause 3(f).[11] Further, the justice contemplated that given the structure of the payment, Trevor and Ronald could have insisted on the return of the money held in trust before it made its way into the hands of the Remaining Siblings.[12]
Court of Appeal
The issue to be determined was whether Clause 3(f) of the Will was satisfied in terms of “making the payments”.[13]
Interpretation – the law:
In determining whether Trevor and Ronald met their payment obligations outlined in Clause 3(f), the Court of Appeal began by outlining the law as it relates to interpreting a will.
Section 26 of the Alberta Wills and Succession Act provides:
26 A will must be interpreted in a manner that gives effect to the intent of the testator, and in determining the testator’s intent the Court may admit the following evidence:
(a) evidence as to the meaning, in either an ordinary or specialized sense, of the words or phrases used in the will,
(b) evidence as to the meaning of the provisions of the will in the context of the testator’s circumstances at the time of the making of the will, and
(c) evidence of the testator’s intent with regard to the matters referred to in the will.
Interpreting a will in such a way as to give effect to the testator’s intentions is paramount. This exercise requires reading the entire will on the assumption that the testator “intended the words in the will to have their ordinary meaning in the absence of a compelling reason not to”.[14] Where more than one interpretation of a word is possible, the interpretation that best gives effect to testamentary intention shall be used.
Section 11 of the Alberta Evidence Act is instrumental in the interpretation process, which, similar to section 13 of the Ontario Evidence Act, requires that “in an action by or against…executors… an opposed or interested party shall not obtain a verdict, decision or judgment on that party’s own evidence… unless corroborated.[15]
Analysis
The Court of Appeal found that the Deceased’s intention was clear with respect to the following: [16]
- He intended for the farmland to pass to the Estate Trustees to “ensure another generation continued to farm the land”.
- He intended the Remaining Siblings to receive $450,000 (approx. 1/4 of the value of his Estate at the time of his death).
- He intended that the money be paid quickly following his death, within one-year.
- He intended the incentive for the quick payment to be that failing to meet the stipulated one-year timeline, meant the four parcels of land would fall to the residue of the estate for the Remaining Siblings to share in – excluding Trevor and Ronald.
Informing its interpretation of the stipulated one-year timeline in the Will, the Court of King’s Bench justice noted that a similar condition in the Deceased’s 2006 Will was less strict and only required Trevor and Ronald to “agree to make the payments…within one year of the Deceased’s death” as opposed to “make the payments within one year”.[17]
| 2006 Will |
The Will |
| h) The above distribution of the estate is conditional upon each of TREVOR MAST and RONALD MAST paying the sum of one hundred thousand ($100,000.00) dollars to RAMONA WIERENGA and RENATE GROSSMAN, or the survivor of them, and twenty-five thousand ($25,000.00) dollars each to DAVID MAST. Should either TREVOR MAST or RONALD MAST not agree to make such payment within twelve (12) months of the date of my death, I THEN DIRECT that any property which such beneficiary was to receive from my estate, shall be divided equally among all of my children. |
3(f) I direct that the devises set forth in paragraphs 3(b), (c) and (d) of this my will be made conditional upon each of my sons, Trevor Mast and Ronald Mast, paying the sum of Seventy-Five Thousand ($75,000.00) Dollars to each of Ramona Wierenga, Renate Grosman, and David Mast, and I further direct that, if any of my said sons fail to make the payments as directed within one year of the date of my death, then the gifts and devises made to each of them in sub paragraph 3(b), (c), and (d) of this my will shall fall into and form part of my residuary estate, to be distributed in accordance with the residuary provisions of this my will. |
Further, the justice noted that failing to comply with Clause 3(f) of the Will meant that the Estate Trustees would lose their entitlements to the farmlands because they were not named as residual beneficiaries.[18]
It was not disputed that the $450,000 was paid into trust with Mr. Driessen before the one-year anniversary of the Deceased’s passing. As stated previously, the Court of Appeal noted that the issue to be determined was whether Clause 3(f) was satisfied in terms of “making the payments”.[19]
The Court of Appeal found that the justice, in finding that the Estate Trustees did not comply with Clause 3(f) of the Will, failed to consider Trevor and Ronald’s distinct roles in their personal capacities and capacities as Estate Trustees.[20]
As a result of this distinction, the Court of Appeal found that it was clear that Trevor and Ronald “made the funds available through the Estate for the benefit of the three siblings within the one year timeline” such that they were paid, just not directly.[21] Trevor and Ronald mortgaged the farmlands and surrendered the required $450,000 before the stipulated anniversary and there was no evidence they attempted to have the money returned (as contemplated by the justice).[22]
In Trevor and Ronald’s personal capacities, they made the $450,000 payment in trust. As Estate Trustees, they each had fiduciary duties to act in good faith in accordance with the Deceased’s wishes.[23] As such, once the $450,000 was paid to the Estate, the funds were subject to a trust, that Trevor and Ronald were trustees of, and attempting to withdraw the funds as contemplated by the justice, would have been a breach of their fiduciary duties as Estate Trustees.[24]
Further, the Court of Appeal stated that whether the funds ought to have been distributed to the Remaining Siblings sooner, either before or after probate, was not the issue to be determined, as that would have been a decision for Trevor and Ronald in their capacities as Estate Trustees.[25]
Instead, to be decided was whether the one year payment obligation was satisfied by Trevor and Ronald acting in their personal capacities, which the Court of Appeal held it was.
The Court of Appeal further held that it was not necessary to determine the issues regarding the inter vivos transfers, as Parcels A and B would have been distributed to Trevor and Ronald in accordance with their satisfaction with Clause 3(f) in any event.[26]
Takeaways
This case highlights the distinct roles of individuals that act in their personal capacities in comparison to that of an Estate Trustee when fulfilling their duties under a will.
—
[1] Mast v Mast Estate, 2026 ABCA 71 (CanLII, at para 1.
[2] Ibid at para 4.
[3] Ibid at para 6.
[4] Ibid at para 12.
[5] Ibid at para 13.
[6] Ibid at para 15.
[7] Ibid at para 16.
[8] Ibid at paras 17 & 20.
[9] Ibid at para 19.
[10] Ibid at para 21.
[11] Ibid at paras 42-43.
[12] Ibid.
[13] Ibid at para 36.
[14] Wills and Succession Act, SA, 2010 c W-12.2, s.26; Hicklin Estate v. Hicklin, 2019 ABCA 136 (CanLII) at paras 11, 13, 47 to 51, 53-57, 65.
[15] Alberta Evidence Act, RSA 2000, c A-18 s.11.
[16] footnote 1 at paras 29-30.
[17] Ibid at para 31-32.
[18] Ibid at para 35.
[19] Ibid at para 36.
[20] Ibid at paras 50-51.
[21] Ibid at para 42.
[22] Ibid at para 45.
[23] Ibid at para 47.
[24] Ibid at para 48.
[25] Ibid at para 49.
[26] Ibid at para 53.
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Written by: Jessica Homer
Posted on: April 2, 2026
Categories: Commentary
Background
Joe Mast died on August 24, 2021 (the “Deceased” or “Estate”), with a Will dated 2016 (the “Will”). Joe was survived by his five children, Trevor, Ronald, David, Renate and Ramona.[1]
Trevor and Ronald were appointed co-Estate Trustees of the Estate (the “Estate Trustees”). Clause 3(f) of the Will devised farmland (Parcels A, B, C and D) to Trevor and Ronald conditionally on them paying $75,000 each to their remaining siblings, David, Renate, and Ramona (the “Remaining Siblings”), within a year of the Deceased’s death.[2] Further, the Will outlined that if the money was paid, each of the Remaining Siblings would be entitled to share 1/3 respectively in the residue of the Estate (which consisted primarily of the farmland).[3]
In May 2017, the Deceased made inter vivos transfers of Parcel A to Trevor and Parcel B to Ronald.
By August 2022, one year following the Deceased’s death, a grant of probate was still not issued. Trevor explained that the total $450,000 to satisfy Trevor and Ronald’s payment obligations would be transferred to a lawyer in trust until the Will was probated – citing delays due to the covid pandemic.[4]
One week prior to the one year anniversary of the Deceased’s passing, Trevor and Ronald paid the $450,000 into trust with the Will drafting lawyer Mr. Driessen.[5] Mr. Driessen proceeded to advise David, Renate and Ramona that the money was paid into trust and “would be used to fulfil the obligations of Trevor and Ronald upon transfer of the applicable titles to them”.[6]
Litigation History
Notably, none of the Remaining Siblings filed an application to compel the Estate Trustees to release the $450,000 from trust. David, on the other hand, filed a caveat in September 2022 and an Application to challenge the validity of the Will, while pleading in the alternative, that the Estate Trustees failed to comply with Clause 3(f) of the Will (“David’s Application”).[7]
David’s Application, inter alia, contended that the Will was contrary to public policy by excluding him as a result of his sexuality, religious beliefs, and divorce and excluded Renate and Ramona based on gender; that the Estate Trustees unduly influenced the Deceased; and sought a determination of the inter vivos transfers of Parcel A and B, by claiming unjust enrichment at the hands of the Estate Trustees forming either a constructive or resulting trust. In November 2024, David ultimately withdrew the caveat and his will challenge.[8]
In April 2023, the Court of King’s Bench issued and Order appointing Trevor and Ronald as administrators of the Estate pending the litigation, while also freezing the Estate.[9]
The special chambers justice ultimately found that Trevor and Ronald did not satisfy their payment obligations under Clause 3(f) of the Will and directed the determination on the inter vivos transfers to trial.[10] The justice implicitly found that Trevor and Ronald acted on improper advice from Mr. Driessen by paying the $450,000 into trust, and that the money had to be paid directly from Trevor and Ronald to their siblings to satisfy Clause 3(f).[11] Further, the justice contemplated that given the structure of the payment, Trevor and Ronald could have insisted on the return of the money held in trust before it made its way into the hands of the Remaining Siblings.[12]
Court of Appeal
The issue to be determined was whether Clause 3(f) of the Will was satisfied in terms of “making the payments”.[13]
Interpretation – the law:
In determining whether Trevor and Ronald met their payment obligations outlined in Clause 3(f), the Court of Appeal began by outlining the law as it relates to interpreting a will.
Section 26 of the Alberta Wills and Succession Act provides:
26 A will must be interpreted in a manner that gives effect to the intent of the testator, and in determining the testator’s intent the Court may admit the following evidence:
(a) evidence as to the meaning, in either an ordinary or specialized sense, of the words or phrases used in the will,
(b) evidence as to the meaning of the provisions of the will in the context of the testator’s circumstances at the time of the making of the will, and
(c) evidence of the testator’s intent with regard to the matters referred to in the will.
Interpreting a will in such a way as to give effect to the testator’s intentions is paramount. This exercise requires reading the entire will on the assumption that the testator “intended the words in the will to have their ordinary meaning in the absence of a compelling reason not to”.[14] Where more than one interpretation of a word is possible, the interpretation that best gives effect to testamentary intention shall be used.
Section 11 of the Alberta Evidence Act is instrumental in the interpretation process, which, similar to section 13 of the Ontario Evidence Act, requires that “in an action by or against…executors… an opposed or interested party shall not obtain a verdict, decision or judgment on that party’s own evidence… unless corroborated.[15]
Analysis
The Court of Appeal found that the Deceased’s intention was clear with respect to the following: [16]
Informing its interpretation of the stipulated one-year timeline in the Will, the Court of King’s Bench justice noted that a similar condition in the Deceased’s 2006 Will was less strict and only required Trevor and Ronald to “agree to make the payments…within one year of the Deceased’s death” as opposed to “make the payments within one year”.[17]
Further, the justice noted that failing to comply with Clause 3(f) of the Will meant that the Estate Trustees would lose their entitlements to the farmlands because they were not named as residual beneficiaries.[18]
It was not disputed that the $450,000 was paid into trust with Mr. Driessen before the one-year anniversary of the Deceased’s passing. As stated previously, the Court of Appeal noted that the issue to be determined was whether Clause 3(f) was satisfied in terms of “making the payments”.[19]
The Court of Appeal found that the justice, in finding that the Estate Trustees did not comply with Clause 3(f) of the Will, failed to consider Trevor and Ronald’s distinct roles in their personal capacities and capacities as Estate Trustees.[20]
As a result of this distinction, the Court of Appeal found that it was clear that Trevor and Ronald “made the funds available through the Estate for the benefit of the three siblings within the one year timeline” such that they were paid, just not directly.[21] Trevor and Ronald mortgaged the farmlands and surrendered the required $450,000 before the stipulated anniversary and there was no evidence they attempted to have the money returned (as contemplated by the justice).[22]
In Trevor and Ronald’s personal capacities, they made the $450,000 payment in trust. As Estate Trustees, they each had fiduciary duties to act in good faith in accordance with the Deceased’s wishes.[23] As such, once the $450,000 was paid to the Estate, the funds were subject to a trust, that Trevor and Ronald were trustees of, and attempting to withdraw the funds as contemplated by the justice, would have been a breach of their fiduciary duties as Estate Trustees.[24]
Further, the Court of Appeal stated that whether the funds ought to have been distributed to the Remaining Siblings sooner, either before or after probate, was not the issue to be determined, as that would have been a decision for Trevor and Ronald in their capacities as Estate Trustees.[25]
Instead, to be decided was whether the one year payment obligation was satisfied by Trevor and Ronald acting in their personal capacities, which the Court of Appeal held it was.
The Court of Appeal further held that it was not necessary to determine the issues regarding the inter vivos transfers, as Parcels A and B would have been distributed to Trevor and Ronald in accordance with their satisfaction with Clause 3(f) in any event.[26]
Takeaways
This case highlights the distinct roles of individuals that act in their personal capacities in comparison to that of an Estate Trustee when fulfilling their duties under a will.
—
[1] Mast v Mast Estate, 2026 ABCA 71 (CanLII, at para 1.
[2] Ibid at para 4.
[3] Ibid at para 6.
[4] Ibid at para 12.
[5] Ibid at para 13.
[6] Ibid at para 15.
[7] Ibid at para 16.
[8] Ibid at paras 17 & 20.
[9] Ibid at para 19.
[10] Ibid at para 21.
[11] Ibid at paras 42-43.
[12] Ibid.
[13] Ibid at para 36.
[14] Wills and Succession Act, SA, 2010 c W-12.2, s.26; Hicklin Estate v. Hicklin, 2019 ABCA 136 (CanLII) at paras 11, 13, 47 to 51, 53-57, 65.
[15] Alberta Evidence Act, RSA 2000, c A-18 s.11.
[16] footnote 1 at paras 29-30.
[17] Ibid at para 31-32.
[18] Ibid at para 35.
[19] Ibid at para 36.
[20] Ibid at paras 50-51.
[21] Ibid at para 42.
[22] Ibid at para 45.
[23] Ibid at para 47.
[24] Ibid at para 48.
[25] Ibid at para 49.
[26] Ibid at para 53.
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