Kellogg Estate, Re (2015), 372 B.C.A.C. 140 (CA);
640 W.A.C. 140
MLB headnote and full text
Temp. Cite: [2015] B.C.A.C. TBEd. MY.028
Inga Kellogg Rouches, Executrix of the Will of Robert P. Kellogg; and Inga Kellogg Rouches, Successor Trustee of the Kellogg Family Trust (respondents/petitioners) v. Vivian P. Kellogg (appellant/respondent) and Susanna M. Kellogg; Inga Kellogg Rouches, Executrix of the Will of Lisa E. Kellogg; and Inga Kellogg Rouches (respondents/respondents)
(CA041498; 2015 BCCA 203)
Indexed As: Kellogg Estate, Re
British Columbia Court of Appeal
Donald, Lowry and Bennett, JJ.A.
May 8, 2015.
Summary:
Robert Kellogg died in 1999; his wife, Lisa, died in 2010. They were residents of the state of Washington. In March 1994, they assigned all of their personal property to a family trust they created naming their three daughters, Inga, Susanna, and Vivian the “primary beneficiaries”. Inga became the “Successor Trustee” of the trust. Mr. and Ms. Kellogg also executed wills. Robert’s will was not probated before his wife died. Under his will, Inga became the “Personal Representative” of the estate. The will provided that the residue of the estate, which consisted of a $1.6 million interest in a piece of real property in British Columbia, was to be given to the trustee of the family trust to be held and distributed on the same terms as the terms of the trust. Two clauses in the will bore on the residue of the estate. At issue was the validity of clauses (“pour over” and “incorporation by reference” clauses) in the will that purported to incorporate the terms of the trust.
The British Columbia Supreme Court, in a decision reported at [2013] B.C.T.C. Uned. 2292, concluded that the pour-over clause was not valid. The court considered the provision for amendments of the family trust being made after the will was executed, and the fact that an amendment was made, were “determinative”. Such amounted to an amendment to the will that the court considered would not comply with the governing legislation in British Columbia. The court did, however, conclude that, despite the reference to the amendment of the terms of the trust in the incorporation by reference clause, it was valid: it incorporated the terms of the trust into the will as they were at the time the will was executed.Vivian appealed.
The British Columbia Court of Appeal dismissed the appeal. The issue raised was of no practical consequence to the distribution of the estate and did not need to be resolved.
Practice – Topic 8858
Appeals – Bar or loss of right of appeal – Moot issues – See paragraphs 1 to 15.
Wills – Topic 8
Testamentary instruments – Incorporation by reference – See paragraphs 1 to 15.
Cases Noticed:
Edwards’ Will Trusts; Dalgleish v. Leighton, Re, [1948] 1 Ch. 440; [1948] 1 All E.R. 821 (C.A.), refd to. [para. 9].
Counsel:
The appellant appeared in person;
H.D. Fisher, for the respondents, Inga Kellogg Rouches, Executrix of the Will of Robert P. Kellogg; and Inga Kellogg Rouches, Successor Trustee of the Kellogg Family Trust.
This appeal was heard at Victoria, B.C., on April 22, 2015, by Donald, Lowry and Bennett, JJ.A., of the British Columbia Court of Appeal. The following judgment of the Court of Appeal was delivered by Lowry, J.A., at Vancouver, B.C., on May 8, 2015.
