Thiemer Estate

Thiemer Estate

The court held that in the context of the Will and the testator's evident intention the word 'shares' in the Money Bequest did not include the Deceased's private company shares nor did it include the shareholder's loans; those assets pass into residue and fund the spousal trust. The Homer Street mortgage, CPP Death Benefit and Income Tax Refund were not part of the Money Bequest; the GICs and London deposits were included. Trustees entitled to indemnity and parties' costs ordered paid from the Estate on a full indemnity basis.

Citation
2012 BCSC 629
Parties
Petitioner/executor/trustee: Brian Charles Gardiner; Petitioner/executor/trustee: Leonard Thomas Doust; Petitioner/executor/trustee: James Alastair Brown; Respondent/beneficiary (common Law Spouse): Gigi Christine Schlappner; Respondent/beneficiary: Reid Phillip Thiemer; Respondent/beneficiary: Michael Philip Gordon Byers; Respondent/beneficiary: Nicholas Bryan Stewart Thiemer; Respondent/beneficiary: Kevin Richard Morrison Thiemer; Respondent/beneficiary: Shannon Faye Demain Thiemer; Respondent/specific Legatee: Francoise Tasse; Respondent/parent/beneficiary: Phil Thiemer; Respondent/parent/beneficiary: Arlene Thiemer; Respondent/residuary Beneficiary: Denny Shelley Byers; Respondent/contingent Beneficiary (charity): Doctors Without Borders Canada / Médecins Sans Frontiéres Canada
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
1 May 2012
Procedural Posture
Interpretation of Will / Probate / Hearing on Petition for Directions (interpretation of Testamentary Provisions)
Outcome
Private company shares and shareholder's loans excluded from the Money Bequest and pass into residue to fund the spousal trust; GICs and London deposits included in Money Bequest; Homer Street Mortgage, CPP Death Benefit and Income Tax Refund excluded from Money Bequest; Trustees entitled to indemnity; costs payable...
Legal Topics
Will Construction, Spousal Trust, Specific Legacy Vs Residue, Interpretation of 'money' in Wills, Shareholder Loans, Estate Marshaling and Costs
Source Language
English
Wills and Estates Trusts Probate Estate Administration Will Construction Spousal Trust Specific Legacy Vs Residue Interpretation of 'money' in Wills +2 more

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Parties

Brian Charles Gardiner

Petitioner/executor/trustee

Leonard Thomas Doust

Petitioner/executor/trustee

James Alastair Brown

Petitioner/executor/trustee

Gigi Christine Schlappner

Respondent/beneficiary (common Law Spouse)

Reid Phillip Thiemer

Respondent/beneficiary

Michael Philip Gordon Byers

Respondent/beneficiary

Nicholas Bryan Stewart Thiemer

Respondent/beneficiary

Kevin Richard Morrison Thiemer

Respondent/beneficiary

Shannon Faye Demain Thiemer

Respondent/beneficiary

Francoise Tasse

Respondent/specific Legatee

Phil Thiemer

Respondent/parent/beneficiary

Arlene Thiemer

Respondent/parent/beneficiary

Denny Shelley Byers

Respondent/residuary Beneficiary

Doctors Without Borders Canada / Médecins Sans Frontiéres Canada

Respondent/contingent Beneficiary (charity)

Procedural Posture

Interpretation of Will / Probate / Hearing on Petition for Directions (interpretation of Testamentary Provisions)

Legal Issues

  1. 1 Whether the term 'shares' in the Money Bequest includes private company shares
  2. 2 Whether shareholder's loans are included in the Money Bequest
  3. 3 Whether specified assets (Homer Street Mortgage, GICs, London deposits, CPP Death Benefit, Income Tax Refund) fall within the Money Bequest

Ratio Decidendi

The court held that in the context of the Will and the testator's evident intention the word 'shares' in the Money Bequest did not include the Deceased's private company shares nor did it include the shareholder's loans; those assets pass into residue and fund the spousal trust. The Homer Street mortgage, CPP Death Benefit and Income Tax Refund were not part of the Money Bequest; the GICs and London deposits were included. Trustees entitled to indemnity and parties' costs ordered paid from the Estate on a full indemnity basis.

Court Disposition

Private company shares and shareholder's loans excluded from the Money Bequest and pass into residue to fund the spousal trust; GICs and London deposits included in Money Bequest; Homer Street Mortgage, CPP Death Benefit and Income Tax Refund excluded from Money Bequest; Trustees entitled to indemnity; costs payable...

Orders

  • Private company shares to pass into residue and fund spousal trust for Gigi Schlappner during her lifetime
  • Shareholder's loans excluded from Money Bequest and to remain part of residue/spousal trust administration