Justice Nielsen released his decision in Kachur Estate, 2017 ABQB 786, on December 19, 2017. While disputes regarding estate succession in the farming context are common throughout Alberta, reported decisions are less plentiful, given that most matters settle prior to a hearing. This decision provides some guidance regarding the passing of farm land and equipment in not uncommon circumstances.
In this case, the testator farmed some property with his brother. The testator’s will provided that a life estate be provided to the brother to allow him to continue farming, along with “all of my farm equipment”. Upon the death of the brother, the land and equipment was to go to the testator’s two nephews in equal shares. Other issues were also dealt with in the decision, but for the purposes of this blog post, we will be dealing with what the court decided relating to “farm equipment” and the extent of the brother’s gift. The brother argued at trial, that he owned the farm equipment jointly with his brother, and that upon the testator’s passing, all of the property passed to him. The brother’s argument was rejected based on conflicting evidence, and section 11 of the Alberta Evidence Act, which requires that parties to estate litigation “shall not obtain a verdict…on that party’s own evidence in respect of any matter occurring before the death of the deceased person, unless the evidence is corroborated by other material evidence”. In this case, only the brother’s evidence suggested that the farm equipment was to be passed to him jointly and pass outside the estate.
Justice Nielsen also had to determine what included “farm equipment” for the purposes of the will. Justice Nielsen’s first port of call was the Oxford Dictionary which defined farm equipment as “the necessary items for farming”. No list of farm equipment was provided and evidence was provided at trial that if the equipment was used on the farm, it was likely farm equipment. This would include vehicles and other items that may not necessarily be considered farm equipment per se, however if they were used for the primary purpose of farming they would be included in the definition.
Finally, the court noted that as part of the brother’s life interest, he would be required to pay the cost of insurance for the land, buildings, farm equipment, as well as taxes, utilities, and cost of reasonable maintenance and repair of the land and farm equipment until the brother passed away. The court acknowledged that there was case-law authority suggesting no obligation on a life tenant to insure property. However, after considering all of the evidence, the court held that it would have been in the reasonable contemplation of testator that the land, property and equipment be insured, particularly when all of these items were to be passed to the next generation after the brother had passed away.
The court did note that the brother was not obliged to pay for major repairs to the land, home or other buildings including farm equipment and that the nephew beneficiaries were responsible for expenses of a capital nature. Only ongoing routine maintenance was to be paid for by the brother.
This case serves as another useful reminder that in joint farming operations, it is always best to have agreements put in writing as to properly clarify each party’s position and to prevent costly litigation.
