Karen Mawhinney v. Royal Trust Corporation of Canada (previously David Scobie, Thomas Walter and Brian Dau), et al.

(Alta.) (Civil) (By Leave)


Wills and estates - Wills, Interpretation - Wills and estates — Wills — Interpretation — Applicant seeking direction from court on whether application to obtain formal proof of will would constitute challenge to validity in violation of no contest clause in will — What is meaning of no contest clause in a will? — Where no contest clause includes exceptions, what effect should they have on interpretation of clause? — Is deference owed to courts undertaking interpretation of a will? — Does task of giving effect to intention of testator involve question of law or mixed fact and law?.


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Ms. Mawhinney was a beneficiary of the estate of the deceased, Mr. Anderson, who died on September 3, 2015. In his four prior wills, Mr. Anderson’s three adult children and Ms. Mawhinney were equal residuary beneficiaries of his estate. This scheme of distribution was altered by a codicil and will executed by Mr. Anderson in August, 2015. The will provided Ms. Mawhinney with other bequests, but the residue of the estate was to be distributed only among the three children. The will also contained a “no contest” clause which stated if any beneficiary challenged the validity of the will or commenced litigation in connection with the will, that beneficiary would forfeit any gifts under the will. The forfeited gifts would then fall into the residue of the estate for distribution. The no contest clause provided for two exceptions. A beneficiary could seek the assistance of the court in the administration of the estate or could seek to “enforce or obtain any rights or benefits” conferred by the law of Alberta without triggering the no contest clause. The personal representatives of the estate obtained a grant of probate in common form of the August will. Ms. Mawhinney contended that there were suspicious circumstances surrounding the preparation and execution of the codicil and August will. She sought the advice and direction of the court to determine whether an application by her under Surrogate Rule 75(1)(a) to obtain formal proof of the will would fall within one of the exceptions to the no contest clause. The motion judge determined that the applicant could require the proof in formal form without triggering the no contest clause. That decision was overturned on appeal.