Written by Barbara J. Stratton Q.C., Emily M. Hole and Sarah J. Huot
In Ayoungman v Ayoungman, 2017 ABCA 333, the Court of Appeal of Alberta considered a dismissed application of the appellant, who claimed that the chambers judge did not give him a fair chance to argue his position.
This case dealt with an application by a beneficiary of the Estate who disputed an inter vivos gift given to the nephew of the deceased. Although the action was stayed on the basis that only the personal representative had standing to challenge any dealings with the Estate assets, the appellant brought another application, seeking the removal of counsel for the nephew on the basis that counsel had witnessed some documents relating to the nephew's matrimonial property settlement when he divorced his wife. The divorce settlement dealt with the matrimonial claims to the house that was the subject of the disputed inter vivos gift. The application was dismissed and the beneficiary appealed.
The Court of Appeal dismissed the appeal, noting that there is no principle of law that a witness to a signature on a document has to “validate” the contents of the document. Just because counsel witnessed the matrimonial settlement does not mean that counsel was certifying that either spouse had the interest in the matrimonial assets he or she claimed. The Court also noted that no further steps could be taken as there was an order staying the action. Finally, the Court held that the appellant’s attempt to remove counsel from the record was another attempt to set aside the disputed inter vivos gift. However, the appellant lacked standing to enforce claims that are vested in the personal representative.
This case serves as a reminder that our courts will not hear applications relating to actions that are properly stayed, nor will they allow those without standing to speak to them. Further, witnessing a signature does not mean that the person is validating the document’s contents (even if that person is a lawyer).