Alberta Court of Appeal affirms interpretation of holographic will

The Alberta Court of Appeal has decided that it was time for an estate dispute that began in 2010 to conclude, given that the province’s Court of Queen’s Bench had already made 17 orders and the appellate court itself had granted two orders.

In Kirst Estate (Re), 2022 ABCA 93, the testator died in 2010 and left a will dated Dec. 1, 1995, that was brief, handwritten, and unwitnessed. The holographic will left his estate to his surviving children and said that his son – the appellant in this case – could live in the family home “for awhile,” which his siblings would determine.

The dispute was under case management starting in 2015. In March 2019, the case management judge ordered a three-day trial regarding the will’s interpretation and the phrase “for awhile.” In October 2019, the trial judge found that the will, if properly interpreted, gave the appellant a conditional gift.

According to the trial judge, the appellant and his siblings would agree on the time period during which he could remain on the property, pursuant to the will’s express condition. The appellant could stay there for some time after the testator’s death, then should vacate the home within a reasonable time so that the personal representatives could finalize the estate according to the will.

The appellant appealed the trial judge’s order as well as the case management judge’s order for him to vacate the property. In June 2020, the Court of Appeal dismissed both appeals and directed the appellant to vacate the home by August of that year.

In September 2020, the case management judge ordered the sale and division of assets. In the present case, the appellate court dismissed the appellant’s appeal, affirmed the case management judge’s order, and directed that the house be listed for sale before Apr. 15, 2022.

The appellate court found that the case management judge’s interpretation of the will – that the house should be sold and the proceeds should be distributed equally to the testator’s surviving children – was reasonable. The case management judge was only following up the appellate court’s June 2020 decision, the appellate court said.

The appeal court found it fair and equitable for the appellant to immediately vacate and remove his possessions from the property; for the house, as the estate’s only significant remaining asset, to be sold without delay; and for the proceeds to be divided equally among the surviving children.

Case management decisions like this one deserve considerable deference, especially relating to exercises of discretion, given the case management judge’s familiarity with the issues, the appellate court noted.