The dispute between the Parties in this case arose in connection with the distribution of a quarter section of land. The Executor originally sold the quarter section to the Plaintiff, but title was never transferred. Subsequently, when one of the beneficiaries, Ms. Brooks, became Trustee, she sold the same quarter section to another party, who transferred title into their name. The Application was made to have portions of the Pleadings struck or amended, and also to have the Claim summarily dismissed.

In order for the Applicant’s Summary Dismissal Application to succeed, Master Schlosser stated that it must be “plain and obvious” or “beyond doubt” that there was no merit to the Plaintiff’s Claim. The Applicant Defendant would have to show both that the sale of the property was made solely for the purpose of distribution, and that the beneficiaries were opposed to it. The Applicant did not file an Affidavit and Master Schlosser held that it was clear on the evidence that the Estate was not fully administered. Master Schlosser further noted that it could not be said that it was plain and obvious or beyond doubt that the sale of the second quarter was for distribution to the beneficiaries only and that their lack of concurrence barred the sale of the land to the Plaintiff. Based on this, there appeared to be a triable issue.

A portion of this Application was to strike parts of the Statement of Claim for serious defects. The Defendant argued that a paragraph of the Claim should be struck because it referred to the “Defendant Estate and Brooks and Graunke, either individually or as a group” (emphasis added), which was taken by Master Schlosser to mean that the Plaintiff was seeking to make the beneficiaries personally liable. It was noted that there was nothing in the evidence or the allegations that would attract personal liability to the beneficiary. Her only involvement was in a representative capacity as Trustee of the Estate. Based on this, Master Schlosser held that this part of the Application was justified.

The Style of Cause named “[The] Estate of Julianita Radford, Susan Brooks and RemediosGraunke”. Master Schlosser noted that an “Estate” is not a legal entity and a deceased person was also not a legal entity. Naming only the Estate would have been fatal, but in this case it was held to be a curable irregularity. The allegations against Ms. Brooks personally were struck and the Style of Cause was to be corrected to show Ms. Brooks in her representative capacity as Trustee of the Estate. Master Schlosser ordered the Statement of Claim to be amended, filed and served within thirty days of the date of the Order. In the end, the Applicant succeeded in having portions of the Pleadings struck or amended, but the Summary Dismissal Application was dismissed.