This matter involved an Estate dispute between five siblings following their father’s death, where one sibling challenged the Executors’ compliance with the Will.

The Application concerned two issues: (1) whether the Executors complied with a conditional bequest requiring them to  pay $75,000 to each of their siblings within one year of death, which they attempted to satisfy by borrowing against land they owned and depositing $450,000 into their lawyer’s trust account; and (2) whether farmland transferred inter vivos in 2017 was a valid gift or held in a Resulting Trust for the Estate.

Since the validity of the Will was no longer being challenged, the Applicant and Respondent submitted that the issues could be dealt with summarily pursuant to Rules 7.2 and 7.3 of the  Rules, and Rule 64 of the Surrogate Rules.

Justice Kiss applied Hryniak v Mauldin, 2014 SCC 7, confirming that summary disposition is only appropriate where there is no genuine issue requiring a trial. There will be no genuine issue requiring a trial when the Court is able to reach a fair and just determination on the merits, as the process (1) allows the Judge to make the necessary findings of fact; (2) allows the Judge to apply the law to the facts; and (3) is a proportionate, more expeditious, and less expensive means to achieve a just result.

On Issue 1, Justice Kiss found summary disposition appropriate. The facts were largely undisputed, there were no credibility concerns, and neither party suggested further evidence would be available at Trial. The issue was purely one of legal interpretation, whether paying the $450,000 into the Estate lawyer’s trust account amounted to “paying” the beneficiaries within one year of death. Justice Kiss held it did not. The obligation was personal, and the condition could only be satisfied upon actual receipt.

On Issue 2, the Court found summary disposition inappropriate. The inter vivos transfers raised questions about donative intent and the presumption of a Resulting Trust. Under s. 11 of the Alberta Evidence Act, RSA 2000, c A-18, the Executors could not rely solely on their own testimony to prove that the transfers were intended as gifts. The only corroborating witness was the drafting solicitor, whose role created credibility and conflict concerns. Further, the Affidavits relied upon in the present matter were sworn roughly two years prior, when the central issue was the validity of the will itself. Given these evidentiary limits and the gaps in the record, viva voce testimony was required, and the matter was directed to Trial.