Date: 20200312 Docket: PR 18-01-11707

(Winnipeg Centre) Indexed as: Fedon et al. v. Fedon

Cited as: 2020 MBQB 53

COURT OF QUEEN’S BENCH OF MANITOBA IN THE MATTER OF: THE ESTATE OF WALTER FEDON, deceased BETWEEN: ) APPEARANCES: ) LESLIE HENRY FEDON, LUCIE DIANE ) George J. Orle, Q.C. and RICHARD STEVE FEDON, ) for the applicants )

applicants, ) Robert Sokalski and ) Ryan Nerbas - and - ) for the respondent ) LORRAINE FEDON and LORRAINE FEDON ) AS THE ADMINISTRATOR OF THE ESTATE OF ) THE LATE WALTER FEDON, DECEASED, ) ) Judgment delivered:

respondent. ) March 12, 2020

TOEWS J.

Introduction [1] This is a notice of application commenced by the three adult children (the

“applicants”) of Walter Fedon (the deceased) for:

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a) An order that a residential home on Lansdowne Avenue in Winnipeg (the

“property”) is not property to be included in the inventory of property subject to

administration of the deceased’s estate;

b) An order that the property is the subject of an agreement between the deceased

and his widow Lorraine Fedon (the “respondent”), who is also named as a

respondent as the administrator of the estate of the deceased; and

c) An order vesting the property into the names of the applicants.

[2] The applicants and the respondent agree that a will which the deceased executed

on November 8, 1988 and which bequeathed the property to the three applicants is void

by operation of The Wills Act, C.C.S.M. c. W150, since the deceased and the respondent

were married after its execution in 2006. However, the applicants argue that the

respondent:

a) has disclaimed any interest in the property which she may be entitled to

under The Intestate Succession Act; C.C.S.M. c. I85 and in the alternative, or

in addition;

b) is estopped from making any claim to the property under The Intestate

Succession Act.

[3] The respondent takes the position that she did not disclaim any such interest in

the property nor did she conduct herself in such way so as to prevent her from advancing

her claim to the property on the basis of estoppel.

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[4] Furthermore, the respondent has filed a motion to strike various portions of the

affidavits filed by one of the applicants, Leslie Fedon, sworn on August 30, 2019 and

October 22, 2019 respectively. In summary, the grounds for the motion are that:

a) the affidavits contain contentious information and belief contrary to Queen’s

Bench Rule 39.01(5);

b) the impugned assertions are hearsay statements which do not have the

requisite requirement that there be a “circumstantial guarantee of

trustworthiness”; and

c) the impugned assertions are not relevant to the issue of whether there was

an agreement between the deceased and the respondent concerning the property.

The Motion to Strike

[5] The respondent’s motion to strike portions of the applicants’ affidavits which the

respondent claims are based on hearsay and irrelevant evidence.

[6] The respondent submits that the affidavits sworn by the applicant Leslie Fedon are

non-compliant with the Queen’s Bench Rules. In particular the respondent relies on Rule

4.07(2) and Rule 39.01(5) which provide:

Contents 4.07(2) An affidavit shall be confined to the statement of facts within the personal knowledge of the deponent or to other evidence that the deponent could give if testifying as a witness in court, except where these rules provide otherwise.

Contents — applications 39.01(5) An affidavit for use on an application may contain statements of the deponent's information and belief with respect to facts that are not contentious, if the source of the information and the fact of the belief are specified in the affidavit.

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[7] On the basis of the forgoing rules, the respondent states that the impugned

portions of the affidavits specified in her notice of motion should be struck out, expunged,

disregarded or ignored since they contain hearsay on matters that are contentious.

[8] The respondent further argues that in any event the hearsay evidence relied upon

has no “circumstantial guarantee of trustworthiness”. This phrase was considered in

R. v. Bradshaw, 2017 SCC 35, [2017] 1 S.C.R. 865 (QL), where the court noted that

while hearsay evidence is presumptively inadmissible because it is often difficult for the

trier of fact to assess its truth, it can be admitted under the principled exception to the

admissibility of hearsay if the criteria of necessity and threshold reliability are met on a

balance of probabilities.

[9] While the Bradshaw decision dealt with the hearsay issue in the context of a

criminal case, the Manitoba Court of Appeal also dealt with the same issue in Fawley et

al. v. Moslenko, 2017 MBCA 47, 413 D.L.R. (4th) 36 (QL). In that case the court held

that where hearsay evidence meets the circumstantial guarantee of trustworthiness it can

be admitted in a civil context. In doing so, the court held that the hearsay rule and the

common law exceptions to it apply equally to civil and criminal cases:

94 There is no merit to the respondent’s submission that the principled exception to the hearsay rule and a Khelawon hearing to determine admissibility questions relating to the principled exception to the hearsay rule have no application to civil cases. Absent some statutory modification to the rules of evidence, the hearsay rule and the common law exceptions to it apply equally to civil and criminal cases (see Khan v College of Physicians and Surgeons of Ontario (1992), 9 OR (3d) 641 at 653 (CA); Jung et al v HSBC Trust Company (Canada) et al, 2006 BCCA 549, additional reasons at 2007 BCCA 67; Pfizer Canada Inc v Teva Canada Limited, 2016 FCA 161 at paras 87, 102-3, 118; and Maria G. Henheffer & Margaux Savoie, “The Principled Approach Exception to Hearsay Evidence in Civil Litigation,” in Justice Todd Archibald & Justice Randall Echlin, Annual Review of Civil Litigation 2008).

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[10] The Bradshaw decision was delivered by the Supreme Court of Canada in June

2017, while the Fawley decision of the Manitoba Court of Appeal was delivered a month

earlier. However, other than refining the test set out in some of the earlier case law it

does not substantively alter the general principles governing the admissibility of hearsay

evidence applied by the Manitoba Court of Appeal.

[11] The respondent has argued in oral submissions that since this matter involved an

adjudication of final rights, the hearsay evidence set out in the applicants’ affidavits is

not admissible. In his written brief he also states: “… there is no circumstantial guarantee

of trustworthiness of the impugned assertions because of the obvious self-interest of the

deponent …”

[12] The respondent purports to rely on a decision of this court in Dobrowolski Estate

v. Dobrowolski, 2019 MBQB 126, [2019] M.J. No. 230 (QL), which in turn cites and

relies on the decisions in Bradshaw and Fawley. In Dobrowolski, McKelvey J.

summarizes the law in respect of the test for the admissibility of hearsay into evidence

as well as dealing with the argument that the evidence should not be admitted because

of the self-interest of the hearsay. It is instructive to reproduce her discussion of the law

as applied to the facts in that case. She states at paras. 83 - 85:

c) Hearsay 83 This area constituted a significant issue throughout the trial and was also considered by Associate Chief Justice Perlmutter at the hearing of the de bene esse examinations on November 5, 2018. At that time, it was foreseen that there would be hearsay issues as a consequence of the demise of Dobrowolski and Natalie, accompanied by the need for witnesses to testify as to their conversations and interactions with them. Perlmutter ACJ determined, based on the principled exception to the hearsay rule with respect to necessity and reliability, that the hearsay testimony would be allowed and considered. Clearly, necessity was satisfied because of Dobrowolski’s and Natalie’s deaths. Therefore,

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reliability became the principle issue, which is, ultimately, one to be evaluated with regard to the weight to be afforded to the evidence. (See: R. v. Bradshaw, 2017 SCC 35, [2017] 1 S.C.R. 865.) 84 The hearsay evidence to be considered in this case significantly comes from Dobrowolski and, to an extent, from Natalie through their children and other witnesses. There was no opportunity for the defence to conduct a meaningful, contemporaneous and sworn/affirmed cross-examination of the deceased individuals regarding the truth of any specific statement or document which was alleged to have been made by them. In essence, there was an inability to test the reliability of certain declared assertions. Further, the defence submits that the hearsay was substantially self-serving. Clearly, the same could be said with respect to the defence’s witnesses who also put forth hearsay evidence related to their interactions, primarily with Dobrowolski. The determination of Perlmutter ACJ to accept such evidence, with which I agree, dealt with the issue of threshold reliability. 85 The ultimate reliability of hearsay evidence must be considered with a view as to its trustworthiness acknowledging the concern related to the defence’s inability to challenge the deceased individuals (pp. 36 to 40 de bene esse evidence). These issues were well discussed in Dodge v. Kaneff Homes Inc., [2001] O.J. 1141 (QL) and Fawley et al v Moslenko, Mainella JA in Fawley stated as follows (at para. 95):

However, the context of a given case in terms of the issues and the impact

that the hearsay evidence may have to resolving them is always a

consideration in the application of the principled approach to the hearsay rule (see R v Couture, 2007 SCC 28 (CanLII) at para 76). While that does

not mean that hearsay evidence is necessarily more readily admissible in civil cases than in criminal cases, civil courts must be mindful that there

are dynamics in a civil case that are different than in a criminal case, such

as a lesser burden of proof, the importance of access to civil justice and the principle of proportionality…

In terms of reliability, Mainella JA stated (at para. 105):

Reliability means “the hearsay statement was made in circumstances which provide sufficient guarantees of its trustworthiness” (Hawkins at

para 74). The judicial assessment of reliability at the admissibility stage focuses on “threshold reliability, not ultimate reliability” (Hawkins at para

75; and Khelawon at para 2). The rationale behind the requirement of reliability is ensuring the integrity of the trial process (see Khelawon at

para 49). The approach to be taken in determining threshold reliability is

a functional one. As Charron J explained in Khelawon (at para 93):

Relevant factors should not be categorized in terms of threshold and ultimate reliability. Rather, the court should adopt a more

functional approach as discussed above and focus on the

particular dangers raised by the hearsay evidence sought to be introduced and on those attributes or circumstances relied upon

by the proponent to overcome those dangers. In addition, the trial judge must remain mindful of the limited role that he or she

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plays in determining admissibility—it is crucial to the integrity of the fact-finding process that the question of ultimate reliability not

be pre-determined on the admissibility voir dire.

[13] In my opinion, the respondent’s position in respect of the admissibility of hearsay

evidence is mistaken. The Bradshaw test as applied in Dobrowolski is a two-step

process, the first of which is the judicial assessment of reliability at the admissibility stage

and focuses on “threshold reliability, not ultimate reliability.”

[14] Contrary to the assertion of the respondent in oral argument that threshold

reliability deals with interim rather than final rights, admissibility at the threshold stage is

not dependent on that distinction. Rather, threshold reliability refers to the principles to

be applied by the judge in his or her limited role of conducting “the admissibility voir

dire”.

[15] Once the judge has determined admissibility on the basis of threshold reliability,

the fact finder then turns his or her mind to the ultimate reliability of the evidence. This

involves the determination by the jury or the judge, if the trial is being conducted by a

judge alone, of the weight to be given to the evidence admitted as a result of the initial

determination that the evidence meets the requirement of threshold reliability.

[16] This distinction is made clear in Bradshaw where the court held at paras. 41 and

42:

41 In short, in the hearsay context, the difference between threshold and ultimate reliability is qualitative, and not a matter of degree, because the trial judge’s inquiry serves a distinct purpose. In assessing substantive reliability, the trial judge does not usurp the trier of fact’s role. Only the trier of fact assesses whether the hearsay statement should ultimately be relied on and its probative value. 42 To preserve the distinction between threshold and ultimate reliability and to prevent the voir dire from overtaking the trial, “[t]here must be a distinction between evidence that is admissible on the voir dire to determine necessity and

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reliability, and the evidence that is admissible in the main trial” (Stewart, at p. 111; see also L. Lacelle, “The Role of Corroborating Evidence in Assessing the Reliability of Hearsay Statements for Substantive Purposes” (1999), 19 C.R. (5th) 376; Blackman, at paras. 54-57). As Charron J. explained in Khelawon, “the trial judge must remain mindful of the limited role that he or she plays in determining admissibility — it is crucial to the integrity of the fact-finding process that the question of ultimate reliability not be pre-determined on the admissibility voir dire” (para. 93). Similarly, she noted in Blackman: “The admissibility voir dire must remain focused on the hearsay evidence in question. It is not intended, and cannot be allowed by trial judges, to become a full trial on the merits” (para. 57). Limiting the use of corroborative evidence as a basis for admitting hearsay also mitigates the risk that inculpatory hearsay will be admitted simply because evidence of the accused’s guilt is strong. The stronger the case against the accused, the easier it would be to admit flawed and unreliable hearsay against him. The limited inquiry into corroborative evidence flows from the fact that, at the threshold reliability stage, corroborative evidence is used in a manner that is qualitatively distinct from the manner in which the trier of fact uses it to assess the statement’s ultimate reliability. As Lederman, Bryant and Fuerst explain, at the threshold reliability stage,

[t]he use of corroborative evidence should be directed to the reliability of the hearsay. Certain items of evidence can take on a corroborative

character and be supportive of the Crown’s theory when considered in the

context of the evidence as a whole. Such evidence relates to the merits of the case rather than to the limited focus of the voir dire in assessing the

trustworthiness of the statement and is properly left to the ultimate trier of fact.

(S. N. Lederman, A. W. Bryant and M. K. Fuerst, The Law of Evidence in Canada (4th ed. 2014), at §6.140)

[17] In the case at bar, the hearsay issues arise as a consequence of the demise of the

deceased, accompanied by the need for witnesses to testify as to their conversations and

interactions with him. I have no difficulty in concluding, as the court in Dobrowolski

did, that necessity of the hearsay has been established as a result of the death of the

deceased.

[18] Also, I am satisfied that reliability has been established on a threshold basis. In

my opinion threshold reliability has been demonstrated on the basis of statements

allegedly made by the respondent in the presence of the deceased and the witness Maria

Zoledowski and set out in Maria Zoledowski’s affidavit, sworn August 12, 2019.

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[19] In respect of the applicant Leslie Fedon, I similarly conclude that threshold

reliability of the evidence contained in his affidavits has been established. He has sworn

that his father related certain intentions to him in a number of conversations and told him

where his will could be located. While it is agreed that the will is void by operation of

law, it is clear that Leslie Fedon was able to find the will at the property following the

deceased’s instructions. The existence of the will was unknown to the respondent until

Leslie Fedon stated at a meeting with the funeral director and the respondent after the

death of his father, that he had been told of the existence of a will and its location by his

father prior to his death.

[20] The assertions by the applicant Leslie Fedon as to the intentions of the deceased

are consistent with the bequests set out in the will and, furthermore, consistent with the

statements made in the affidavit of Maria Zoledowski.

[21] In arriving at this conclusion, I am mindful of the fact that there has been no

opportunity for the respondent to conduct a meaningful, contemporaneous and sworn

cross-examination of the deceased regarding the truth of any specific statement or

document which was alleged to have been made by him. I recognize that there is an

inability to test the reliability of certain declared assertions.

[22] In respect of the argument that the evidence is irrelevant, I would note that the

respondent bases that position on the argument that the portions of the impugned

affidavit evidence fall outside of the issue set out in the notice of application. The

respondent takes the position that the applicants’ material is restricted to an issue arising

out of “… an agreement made between Walter Fedon and Lorraine Fedon …”.

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[23] In my opinion, the respondent is construing the application and the grounds being

advanced by the applicants too narrowly. I am satisfied that the matters raised by the

applicants have been disclosed to the respondent in the relevant material and are properly

before the court. In any event, there is no prejudice to the respondent by the matters

raised since the applicants have clearly set out the complete basis for the application in

the brief filed with the court and which the respondent addressed in her responding brief.

In my opinion, the material in the affidavit is not irrelevant.

[24] Accordingly, I am satisfied that the evidence impugned by the respondent is

admissible and the respondent’s motion to strike portions of the applicants’ affidavits

which the respondent claims are based on hearsay and irrelevant evidence, is dismissed.

Whether the hearsay evidence should ultimately be relied on and its probative value is

not a matter to be determined at this stage.

The Facts

[25] The respondent commenced a common-law relationship with the deceased in

approximately 1990 when she moved into the property where the deceased resided until

his death. The two were formally married in 2006 and remained together until the

deceased’s death on June 20, 2018. The property was always registered in the name of

the deceased alone from the time the two began to live together until the date of his

death.

[26] Although there is some dispute as to how much money each put into the joint

bank account opened in 1998 that they kept at TD Canada Trust (the joint account), it

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appears from the material filed that both deposited money into the account from separate

sources and that the bank account was utilized to pay their household expenses.

[27] Of note, the deceased did deposit the proceeds of a rental home which he sold

during the course of the marriage into the joint bank account. The respondent states

that her income from the business she ran and the net proceeds from the sale of that

business went into the joint account. The deceased’s pension cheques were also

deposited into that account.

[28] While there is some dispute over whether any money went into that joint account

from the sale of her own home when she moved into the property, it appears to me that

the evidence establishes that the joint account was used to facilitate the running of their

joint household on the property.

[29] In 2006 the deceased and the respondent purchased a small rural property in

Woodlands Manitoba for approximately $26,000 which they used as a summer cabin.

The evidence appears to support the respondent’s position that the funds used to pay for

the Woodlands property came jointly from both the deceased and the respondent.

[30] The evidence of the applicants, with one notable exception which I will deal with

separately, is derived mainly from the affidavits sworn by the applicant Leslie Fedon. He

stated that his father executed a will on November 8, 1988. He was advised that the will

left the property to the applicants in equal shares. He stated that on various occasions

his father reiterated the location of the will to him and that the will left the property to

the three applicants.

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[31] Specifically, after the marriage in 2006 to the respondent, Leslie Fedon states that

his father told him that he was intending on buying the Woodlands property with the

respondent and that it was going to be held jointly by the deceased and the respondent.

However, he said the title to the property would remain in his name alone and that as

stated in the will, it would be for the benefit of the three applicants.

[32] The applicant, Leslie Fedon, also states in his affidavit that the respondent was

unaware that the deceased had a will and when asked by the funeral director at a meeting

that included Leslie Fedon if there was a will, replied that there was no will. Leslie Fedon

stated that at that time there was a will and subsequently located the will at the property

before the meeting with the funeral director resumed.

[33] The applicants also rely on the affidavit of Maria Zoledowski, a friend of the

deceased and his first wife before she passed away, who stated that she had known the

respondent for many years through family connections and from family social functions.

In her affidavit, she states that she was present at a conversation at her home with the

deceased and the applicant who were visiting her. The conversation purportedly took

place some years before the deceased’s death.

[34] Maria Zoledowski states in her affidavit that the respondent mentioned during this

conversation that the deceased was quite ill and that he would probably predecease her.

She said that the respondent also stated that the arrangements they made were that she

would be satisfied with taking only his pension and the title to their farm property which

they both referred to as “the cottage”. Ms. Zoledowski states that the respondent also

said that she did not “want his house or any of his property” but that the deceased said

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nothing in response to this part of the conversation other than to say “he was not that

sick”.

[35] For her part, the respondent states in an affidavit sworn on October 3, 2019, that

she “ … would not have told Maria that I had made an arrangement with Walter about

what would happen with his assets after he died, because we never had any such

arrangements.”

[36] She stated that while the deceased had been diagnosed with Legionnaires’ Disease

in the summer of 2017, he was given a clean bill of health in May of 2018. However, in

June of 2018 he was diagnosed with a fast, aggressive leukemia and he died only a few

days later on June 20, 2018.

Positions and Arguments of the Parties

[37] The respondent takes the position that the only issue properly before the court is

whether the property is subject to an agreement between the deceased and the

respondent which would disentitle the respondent to the property. The respondent takes

this position on the basis of the wording of the application. As stated in my decision to

dismiss the respondent’s motion to strike portions of the applicants’ affidavit evidence,

the respondent is construing the application and the grounds being advanced by the

applicants too narrowly. I am satisfied that the issues argued by the applicants are

properly before the court and therefore I will consider all of the issues raised by the

applicants.

[38] The applicants argue that the respondent disclaimed any interest in the property.

They rely on the affidavit of Maria Zoledowski who purports to recount the comments of

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the respondent in her presence and the presence of the deceased in respect of not

wanting his house or any of his property.

[39] Counsel for the applicants argues that The Intestate Succession Act does not

preclude anyone from waving, contracting out or giving up their right to share in an

estate. He argues that the statements of the respondent amount to a disclaimer in law.

[40] The respondent states that a disclaimer of rights under a will or pursuant to The

Intestate Succession Act cannot be effective before the death of a testator or the

death of the intestate person since those rights do not crystalize until the death of the

testator or intestate person.

[41] The second basis on which the applicants rely in advancing their position that the

respondent does not have any claim to the property is on the basis of promissory

estoppel. The evidence relied on to advance this position includes:

the fact that the deceased held the property in his own name alone despite

purchasing other property jointly with the respondent;

that this intention to bequeath the property to his three children is evidenced by

the fact that he prepared a will reflecting that intention and that he communicated

this intention to his son Leslie Fedon on a number of specific occasions;

that the respondent was aware that the house was in the deceased’s name alone;

and

that the respondent by her conduct and by her specific words led the deceased to

believe that she agreed to the bequest of the property to his children and that to

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allow the respondent to take advantage of the fact that the will was void, would

be inequitable.

[42] The respondent takes the position that the basic conditions to establish estoppel

as set out in the relevant case law are not present here and so the applicants’ application

must fail on that basis as well.

Discussion and Analysis

[43] In reviewing and considering the evidence in this case, I have come to the

conclusion that there is no reason to disbelieve the evidence brought forward by the

applicants. Generally speaking, it has the ring of truth to it. In my opinion, it corresponds

with and accounts for the actions of the deceased in dealing with his property and how

he wished his property to be dealt with after his death.

[44] However, its general reliability and credibility notwithstanding, in my opinion the

evidence does not establish the applicants’ claim to the property. The evidence

presented, simply put, does not establish a disclaimer by the respondent to her interest

in the property granted pursuant to The Intestate Succession Act. Nor, in my opinion,

does the evidence establish promissory estoppel so as to prevent the respondent from

advancing a claim to the property. The evidence of Maria Zoledowski purporting to

recount a conversation in the context of an informal social conversation with the

respondent and the deceased does not in my opinion provide a legal basis, even together

with the other evidence, for establishing the position that the respondent disclaimed her

interest in the property or that she, through her words or conduct, is estopped from

claiming her right to the property.

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[45] In respect of the argument based on disclaimer, I agree with the respondent that

a disclaimer to a deceased’s estate before the death of a deceased is of no effect.

[46] In Biderman v. Canada, 2000 CanLII 14987 (FCA) the court held at paras.

11 - 13:

11 In the context of wills and estates, a disclaimer is the act by which a person refuses to accept an estate which has been conveyed or an interest which has been bequeathed to him or her. Such disclaimer can be made at any time before the beneficiary has derived benefits from the assets3. It requires no particular form and may even be evidenced by conduct4. 12 In the present instance, the first and informal disclaimer made in 1991 by Mr. Biderman is, I believe, legally ineffective and of no avail to him. Not unlike the civil law in Quebec, the common law requires that a disclaimer in order to be effective be made after the death of the legator, that is to say when the legatee is entitled to inherit. While the Civil Code of Quebec has a specific provision expressly prohibiting a disclaimer with respect to a succession not yet opened5, the nature of a disclaimer at common law and its retroactive effect to the date of death of the deceased lead to the same result. In Bence v. Gilpin6, cited in Re McFaden7 and in McLean & Kerr v. Hrab8, Kelly C.B. wrote:

A disclaimer to be worth anything must be an act whereby one entitled to an estate immediately and before dealing with it renounces it

whereby in effect he says: "I will not be the owner of this property".

(My emphasis)

13 There is no entitlement to an estate until it is opened since a testamentary gift can always be revoked until death. Once made, the disclaimer is retroactive to the date of the death of the deceased9.

[47] Although the court was specifically dealing with the admissibility of a will in

evidence prior to the death of a testator for a collateral purpose, the Manitoba Court of

Appeal stated with apparent approval in Perzan v. Struk, 2006 MBCA 32, 205 Man.R.

(2d) 20 (QL), at para. 23, that:

…in Re Smith (deceased), [2001] 3 All E.R. 552 (Ch.D.), the issue before the court was whether a voluntary disclaimer of one’s rights to a benefit from an estate was valid – the disclaimer having been executed before the testator’s death. It was held that the disclaimer was of no effect since, before death, there was nothing to disclaim (at para. 10):

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A disclaimer bites on something that can be disclaimed; on a transaction which can in some way be said to be an attempt to make a gift. The

testamentary intentions of a living person do not fall within that category. Until the death there is simply nothing that can be disclaimed and any

attempt to disclaim is invalid and ineffective.

[48] Although the case law referred to deals with an interest provided pursuant to a

will, I see no difference in principle or in law where, as is the case here, the disputed

interest, arises pursuant to an intestacy and not a will, after the death of the deceased.

Whether the interest in the property arises pursuant to a will or an intestacy, the

disclaimer must be made when the person making the disclaimer is entitled to the benefit.

Here, the purported disclaimer occurred before the death of the deceased and is therefore

for that reason alone not an effective disclaimer.

[49] I would also mention that counsel for the applicants pointed out that a disclaimer

in the context of a property settlement agreement in a marital dispute effectively allows

for a form of disclaimer where both parties renounce an interest in the other party’s

estate. In my opinion, the very different social policy underlying the legal principles and

statutory provisions operating in the context of the breakdown of a marital relationship

are inapplicable here.

[50] In respect of the applicants’ argument based on promissory estoppel, the

applicable principles governing this doctrine are set out in CAE Aircraft Ltd. v.

Canadian Commercial Corp., [1989] 57 Man.R. (2d) 1, [1989] M.J. No. 81 (Man. Q.B.)

where the court held:

[37] Promissory estoppel requires six basic conditions per the judgment of Addy, J., in W. and R. Plumbing & Heating Ltd. v. The Queen, [1986] 2 F.C. 195; 1 F.T.R. 229:

(1) There must be a promise by the person against whom the principle is invoked.

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(2) The promise must be clear and unequivocal. (3) The promisee must have changed his position as a result of the promise. (4) There must be a real legal relationship between the parties. (5) The legal relationship must be affected by the promise. (6) There must have been an intention of the promisor to affect the legal relationship.

[51] It is my opinion that the applicants have not established their entitlement to the

property on this ground. The evidence does not establish a clear recognition by the

respondent that the deceased wanted the property to be given to his children exclusively.

In my opinion there is no course of conduct by the respondent or reliance on either the

words or conduct of the respondent by the deceased that led him to act in a particular

way.

[52] While I am of the opinion that the deceased more than likely intended the property

to go to his three children, there is no evidence that this intention was ever communicated

to the respondent who was his spouse of almost 30 years or that she made a clear and

unequivocal promise to honour those intentions. As the evidence of Leslie Fedon

indicates, it would appear that the respondent did not even know of the existence of the

deceased’s will that contained those intentions until after his death when its existence

was disclosed to the respondent by Leslie Fedon and was located by him.

[53] The fact that the deceased may have expressed certain testamentary intentions

to his son from time to time does not demonstrate that the respondent made any promise

to the deceased that she agreed with those intentions or that the deceased in any way

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altered his position as a result of a promise made by the respondent. Even accepting the

evidence of Maria Zoledowski on its face, I do not agree that comments of this nature in

the context of an informal social gathering along with the other evidence in this case is a

satisfactory evidentiary basis of a promise made such as would give rise to the operation

of promissory estoppel here.

[54] Accordingly, the applicants’ case fails on this ground as well.

Conclusion

[55] In the result, I would dismiss the application for the reasons provided.

[56] In respect of costs in this matter, it is my opinion that the applicants and the

respondent should have their costs out of the estate assets on a solicitor/client basis.

Costs on this basis are customarily awarded to the executor or administrator of an estate

given the responsibility that the executor or administrator has in respect of his or her

responsibility to properly safeguard the assets of an estate and to ensure that they are

distributed in accordance with the applicable law. This the respondent has done.

[57] In this case, I am also of the opinion that the applicants are also entitled to their

costs on a solicitor/client basis since there is no reason to disbelieve that the applicants

acted in good faith by challenging the proposed distribution by the respondent as not

being in accordance with the deceased’s intentions. The evidence indicates that it is the

deceased who may have acted under the mistaken belief that his will continued to be

valid not withstanding his subsequent marriage to the respondent.

[58] I find that while he did not communicate those intentions to the respondent for

reasons that are not evident to me, his failure to do so and his failure to take the

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appropriate steps to ensure that his estate would be distributed in accordance with the

void will and his expressed intentions to his son, resulted in the applicants undertaking

this action against the estate in good faith. On this basis, I am of the opinion that it is

his estate that should shoulder the cost of the applicants’ application on a solicitor/client

basis and I so order.

J.