Elliott - Mordy - Porter - Cloutier

          *
Home | Contact
| Advertising
| Frequent Q&A
| Terms of Service
| Print version
| /+/ <./>
*

Globe24h logo


Ã—




powered by


*Please read our*

*Frequent Q&A*

*before contacting us*

*Submit your document for free publishing*

*Document requirements:*

It must be related to law and judicial decisions or to the law system
generally (courts, prosecutors, police, lawyers, bailiffs, public
notaries, etc).

The subject can be any type (record, release, personal statement,
complaint, evidence, etc).

It must be obtained legally and must not be protected by any copyright.

You must provide the document in a text format (doc, txt, rtf, html). We
do not accept PDF or pictures (jpg, png, gif, etc).

It must be unique (not published anywhere else on the internet) and it
must not contain any hyperlink.

We shall publish your document *here*
in up to 5 working days, after
we examine it. We reserve the right to reject any document that we
consider inappropriate.

Please send it to: globe@globe24h.com

Personal Data Removal - Request Form



Garner v. Hunnings, 1995 3107 (BC SC)

1995-10-23

DATE OF RELEASE: OCTOBER 23, 1995 No. 92/2714

* Donation
* Grants
* Credit card payment
* Money Managers
* Advertise
* Advertising
* Donating
* Real estate investment
* Donate
* Internet advertising agency
* Donation
* Grants
* Credit card payment

VICTORIA REGISTRY

*/ IN THE SUPREME COURT OF BRITISH COLUMBIA/*

RE: THE ESTATE OF MAXINE PINKERTON BASSET OTHERWISE

KNOWN AS MAXINE P. BASSETT AND MAXINE BASSETT, (DECEASED)

BETWEEN: )

)

MARGARET HELEN GARNER )

)

PLAINTIFF ) REASONS FOR JUDGMENT

)

AND: ) OF THE HONOURABLE

)

GLENN BRIAN HUNNINGS, THERESA ) MADAM JUSTICE QUIJANO

BASSETT-PRICE, BRIDIE BASSETT, )

HAROLD BASSETT, MICHAEL BASSETT, ) IN CHAMBERS

BRIAN BASSETT, ST. MARY'S CHURCH )

and CANADIAN CANCER SOCIETY )

)

DEFENDANTS )

Peter C.M. Freeman, Q.C. Counsel for the Plaintiff

G. Bruce Butler Counsel for the Defendant:

Glenn Brian Hunnings

Date and Place of Hearing October 5, 1995

Victoria, B.C.

1 This is an application brought by the defendant, Glenn Brian
Hunnings, for an order that the plaintiff pay to him the sum of
$80,000.00 which, he says, she is obliged to do pursuant to the
provisions of the settlement of this action confirmed by a consent order
made October 29, 1993. The original claim involved a dispute between
the plaintiff and the defendant Hunnings with respect to the validity of
two different wills of Maxine P. Bassett, the issue being whether the
testatrix had the capacity to make the later will which benefitted the
plaintiff but not the defendant, and which replaced an earlier will
which would have benefitted the defendant but not the plaintiff. The
action was settled and the settlement confirmed by a consent order made
by the Honourable Madam Justice Dorgan on October 29, 1993. The
relevant portion of the order which gives rise to this application is as
follows:

F.The balance of the residue shall be split equally between Glenn
Hunnings and Margaret Helen Garner to be dealt with by each of them as
follows:

a.Within 12 months of receipt of funds from the Estate,
Margaret Helen Garner shall donate $100,000 in cash or by cheque to a
charity or charitable institution. The choice as to the appropriate
recipients shall be solely at her discretion. In the event that some or
all of the funds have not been donated after 12 months following receipt
of the funds by her, those funds which have not been gifted shall be
paid to Glenn Hunnings for his own use absolutely.

2 There is a sub-paragraph b. which required the defendant
Hunnings to donate all of his share of the residue to charity and to do
so "within 12 months of receipt of funds from the Estate". That
sub-paragraph also provided that in the event Mr. Hunnings failed to
donate within 12 months of "receipt of funds" then those funds which had
not been donated would have to be paid to the plaintiff.

3 The defendant says that the plaintiff has breached the
obligation in paragraph 7 a. of the order in that she failed to donate
the $100,000.00 within 12 months of receipt by her of the first
$100,000.00 of residue paid to her out of the estate. The plaintiff
says that she understood the 12 month period would begin to run after
she had received substantially the whole of her share of the residue.
That occurred on August 17, 1994 when she received a partial payment of
$150,000.00 from the estate, bringing to $315,000.00 the total funds
received to that date, of a total of $345,000.00 ultimately received.

4 The first partial distribution of the estate was made
December 9, 1993, to Mr. Hunnings in the amount of $50,000.00 and
further partial distributions were made to both parties thereafter on
approximately the same dates in April, May, August and December of
1994. On April 7, 1994 the plaintiff received $125,000.00 as the first
partial distribution of the residue of the estate to her in accordance
with the settlement. Mr. Hunnings received a further $75,000.00 on
April 8, 1994 and thereafter they received identical amounts through the
next three payments until December 20, 1994, when the residue of the
estate was paid out in full.

5 Mr. Hunnings says that the order obliged the plaintiff to make
a charitable donation of $100,000.00 on or before the expiry of 12
months from April 7, 1994. He says that by April 7, 1995 the plaintiff
had donated only $20,000.00 and therefore the balance of $80,000.00
which had not been donated by April 7, 1995 is, pursuant to the
provisions of the order, payable to him for his own use absolutely.

6 By a letter dated May 19, 1995 from the plaintiff's solicitor
to the defendant's solicitor, notice was given of the first $20,000.00
donation to the University of Victoria and the commitment made by the
plaintiff to donate a total of $100,000.00 in the context of an
agreement reached between the plaintiff and Dr. Strong, President of the
University, as to the use to which the $100,000.00 was to be put. In
paragraph 7 of her affidavit filed June 26, 1995 the plaintiff says that
she governed her conduct in accordance with the terms of the consent
order which she said "obligates me to make said donation within 12
months following receipt of my share of the residue." She also says
that she did not seek or receive advice from counsel with respect to the
timing of the donations because she thought she understood the wording
of the order and she relied on her understanding.

7 By August 14, 1995 the plaintiff had forwarded a cheque to the
University of Victoria for the balance of $80,000.00 to complete the
$100,000.00 donation. The $80,000.00 gift was described as being
unconditional with the only exception being in the event that it was
determined by this court that the plaintiff had not donated the funds
within the time required by the consent order, in which case the
$80,000.00 would have to be refunded.

8 To determine whether the plaintiff is in breach of the consent
order it is necessary to decide whether the wording of the consent order
is clear in its requirement with respect to the time within which the
plaintiff was to have made the $100,000.00 contribution to charity or
whether it is ambiguous such that it was reasonable for the plaintiff to
interpret it as she did and, therefore, she is not in breach of that
term of the order.

9 If it is found that the plaintiff's obligation to make the
charitable contribution was within the time as described by the
defendant, namely 12 months from the date of receipt of the first
payment, then the plaintiff says that the court should invoke its
equitable jurisdiction and grant relief against forfeiture of the
$80,000.00 in the circumstances.

10 In considering the first issue, the term "the funds" is not
defined in the consent order and is used variously to refer to money
received from the estate as well as the money to be donated to charity.
In particular, the requirements of paragraph 7 a. of the order include
the following:

...In the event that some or all of the funds have not been donated
after 12 months following receipt of the funds by her, those funds which
have not been gifted shall be paid to Glenn Hunnings for his own use
absolutely.

This provision is confusing and arguably inconsistent with the
defendant's position that the plaintiff's obligation was to donate the
first $100,000.00 received.

11 The defendant says that if the wording of the order is
ambiguous, then the language used by the plaintiff's solicitor in
paragraph 4 of his letter of October 7, 1993, to the defendant's
solicitor, sent in the course of negotiations, ought to be used to
clarify the order. In particular he relies on paragraph 4 at the top of
p. 2 which reads as follows:

4.The donations to be made by Mrs. Garner and Mr. Hunnings,
referred to in point 3 of your September 28th letter, will be made by
delivery of cash or certified cheques to the charities of their choice.
If a partial distribution of the residue is made, any portion received
must be donated within twelve months of receipt.

The defendant maintains that this language makes it clear that
Mrs. Garner was to be obligated to pay the first $100,000.00 of her
share of the residue to charity. With respect, I cannot agree that the
language referred to is clear with respect to the time within which Mrs.
Garner was to be expected to have made the charitable donations. The
language employed, namely, "any portion received must be donated within
12 months of receipt" could logically be applied to the money received
by Mr. Hunnings, since he was obliged to donate all of his share to
charity, but could not logically be applied to the money received by
Mrs. Garner from time to time since she had only to donate $100,000.00
of the $345,000.00 to which she would ultimately be entitled.

12 I cannot impute to the plaintiff knowledge of the contents of
the letter of October 7, 1993 from her solicitor to the solicitor for
the defendant in which reference is made to donations from partial
distribution, in the absence of any evidence that the plaintiff was
aware of the contents of that letter and understood them to have been
incorporated into the consent order. The evidence of the plaintiff is
that she was unaware of that letter.

13 In the context of the whole of the settlement, the language of
paragraph 7 a. does not give clear direction to the plaintiff with
respect to the point at which the 12 month period would commence. If
the commencement of the 12 month period cannot be determined with
certainty, the expiry of that period is likewise incapable of certain
determination.

14 Because of the ambiguity in the wording of the particular
provision, as previously referred to, it was reasonable for the
plaintiff to interpret the order as she did. Therefore the perfecting
of the balance of the $100,000.00 donation by August 14, 1995 satisfied
the requirements of the order.

15 Having come to this conclusion, it is not necessary to
determine whether relief against forfeiture is justified on the facts of
this case.

16 The defendant's application is dismissed.

17 Costs to the plaintiff at Scale 3.

"G.M. Quijano, J."

October 23, 1995

Victoria, British Columbia

------------------------------------------------------------------------

* R.I.E. v. R.W.E., 2005 BCSC 382
<../../../2005/03/18/r-i-e-v-r-w-e-2005-bcsc-382.shtml>
* MacColl v. MacColl, 2012 BCSC 643
<../../../2012/05/04/maccoll-v-maccoll-2012-bcsc-643.shtml>
* Dragutinovich v. Lee, 2006 BCSC 1521
<../../../2006/10/16/dragutinovich-v-lee-2006-bcsc-1521.shtml>

<<<

| >>>

Elliott - Mordy - Porter - Cloutier

Exhibit