Leonard v. Canada (Minister of Indian and Northern Affairs), 2004 FC 665

Date: 20040506

Docket: T-62-03

Citation: 2004 FC 665

BETWEEN:

                                          JAMES DUNLOP GEORGE LEONARD

                                                                                                                                          Appellant

                                                                           and

                                                    HER MAJESTY THE QUEEN

                                           IN RIGHT OF CANADA, (MINISTER OF

                                            INDIAN AND NORTHERN AFFAIRS),

                                        ROBERTA NAHANEE, TRACY GODDYN,

                                      BARBARA LEONARD, CHUCK LEONARD,

                                             JOHN LEONARD, SANDY GEORGE

                                                            and RUSTY WATTS

                                                                                                                                  Respondents

                                                        REASONS FOR ORDER

LEMIEUX J.

INTRODUCTION

[1]                James Dunlop George Leonard ("James Leonard" or the "appellant") has appealed, pursuant to section 47 of the Indian Act (the "Act"), a November 5, 2002 decision of the Minister's delegate finding not testamentary in nature a document dated April 5, 1999 (the "document"), signed by his grandfather, John George Leonard, who, at the time of his death on May 31, 2001, was an ordinary resident of the Kamloops Indian Reserve No. 1 (the "Reserve") as a member of the Kamloops Indian Band.

[2]                Section 42 of the Act vests in the Minister of Indian Affairs and Northern Development exclusive jurisdiction in relation to "matters and causes testamentary" with respect to deceased Indians.

[3]                By letter to the appellant dated December 24, 2002, Crystal Hecht, Senior Estates Officer at Indian and Northern Affairs Canada ("INAC") explained why the Minister's delegate had found the document not a will.

[4]                That letter reads in part:

You asked two questions:

1.             What part of the document dated April 5, 1999 does not meet the requirements of a will?

                                                                      . . .

In response to your first question, there are four requirements that must be met with respect to wills under section 45(2) of the Indian Act:

-               must be in writing

-               must be signed by the testator

-               must dispose of property

-               must take effect upon death

The Minister reviewed the document and he determined that the document may actually take effect prior to death and, therefore, does not meet the fourth requirement. [emphasis mine]

[5]                Sections 42, 43, 45 to 47 of the Indian Act read:

42. (1) Subject to this Act, all jurisdiction and authority in relation to matters and causes testamentary, with respect to deceased Indians, is vested exclusively in the Minister and shall be exercised subject to and in accordance with regulations of the Governor in Council.                                            . . . 43 Particular powers 43. Without restricting the generality of section 42, the Minister may (a) appoint executors of wills and administrators of estates of deceased Indians, remove them and appoint others in their stead; (b) authorize executors to carry out the terms of the wills of deceased Indians; (c) authorize administrators to administer the property of Indians who die intestate; (d) carry out the terms of wills of deceased Indians and administer the property of Indians who die intestate; and (e) make or give any order, direction or finding that in his opinion it is necessary or desirable to make or give with respect to any matter referred to in section 42. R.S., c. I-6, s. 43.                                            . . . 45. (1) Nothing in this Act shall be construed to prevent or prohibit an Indian from devising or bequeathing his property by will. 45(2) Form of will (2) The Minister may accept as a will any written instrument signed by an Indian in which he indicates his wishes or intention with respect to the disposition of his property on his death. 45(3) Probate (3) No will executed by an Indian is of any legal force or effect as a disposition of property until the Minister has approved the will or a court has granted probate thereof pursuant to this Act. R.S., c. I-6, s. 45. 46(1) Minister may declare will void 46. (1) The Minister may declare the will of an Indian to be void in whole or in part if he is satisfied that(a) the will was executed under duress or undue influence; (b) the testator at the time of execution of the will lacked testamentary capacity; (c) the terms of the will would impose hardship on persons for whom the testator had a responsibility to provide; (d) the will purports to dispose of land in a reserve in a manner contrary to the interest of the band or contrary to this Act; (e) the terms of the will are so vague, uncertain or capricious that proper administration and equitable distribution of the estate of the deceased would be difficult or impossible to carry out in accordance with this Act; or (f) the terms of the will are against the public interest. 46(2) Where will declared void (2) Where a will of an Indian is declared by the Minister or by a court to be wholly void, the person executing the will shall be deemed to have died intestate, and where the will is so declared to be void in part only, any bequest or devise affected thereby, unless a contrary intention appears in the will, shall be deemed to have lapsed. R.S., c. I-6, s. 46. APPEALS 47 Appeal to Federal Court 47. A decision of the Minister made in the exercise of the jurisdiction or authority conferred on him by section 42, 43 or 46 may, within two months from the date thereof, be appealed by any person affected thereby to the Federal Court, if the amount in controversy in the appeal exceeds five hundred dollars or if the Minister consents to an appeal. [emphasis mine]		42. (1) Sous réserve des autres dispositions de la présente loi, la compétence sur les questions testamentaires relatives aux Indiens décédés est attribuée exclusivement au ministre; elle est exercée en conformité avec les règlements pris par le gouverneur en conseil.                                            . . . 42(3) Application des règlements (3) Les règlements prévus par le paragraphe (2) peuvent être rendus applicables aux successions des Indiens morts avant ou après le 4 septembre 1951 ou à cette date. S.R., ch. I-6, art. 42. 43 Pouvoirs particuliers 43. Sans que soit limitée la portée générale de l'article 42, le ministre peut_: a) nommer des exécuteurs testamentaires et des administrateurs de successions d'Indiens décédés, révoquer ces exécuteurs et administrateurs et les remplacer; b) autoriser des exécuteurs à donner suite aux termes des testaments d'Indiens décédés; c) autoriser des administrateurs à gérer les biens d'Indiens morts intestats; d) donner effet aux testaments d'Indiens décédés et administrer les biens d'Indiens morts intestats; e) prendre les arrêtés et donner les directives qu'il juge utiles à l'égard de quelque question mentionnée à l'article 42. S.R., ch. I-6, art. 43.                                            . . . 45. (1) La présente loi n'a pas pour effet d'empêcher un Indien, ou de lui interdire, de transmettre ses biens par testament. 45(2) Forme de testaments (2) Le ministre peut accepter comme testament tout document écrit signé par un Indien dans lequel celui-ci indique ses désirs ou intentions à l'égard de la disposition de ses biens lors de son décès. 45(3) Homologation (3) Nul testament fait par un Indien n'a d'effet juridique comme disposition de biens tant qu'il n'a pas été approuvé par le ministre ou homologué par un tribunal en conformité avec la présente loi. S.R., ch. I-6, art. 45. 46(1) Le ministre peut déclarer nul un testament 46. (1) Le ministre peut déclarer nul, en totalité ou en partie, le testament d'un Indien, s'il est convaincu de l'existence de l'une des circonstances suivantes_: a) le testament a été établi sous l'effet de la contrainte ou d'une influence indue; b) au moment où il a fait ce testament, le testateur n'était pas habile à tester; c) les clauses du testament seraient la cause de privations pour des personnes auxquelles le testateur était tenu de pourvoir; d) le testament vise à disposer d'un terrain, situé dans une réserve, d'une façon contraire aux intérêts de la bande ou aux dispositions de la présente loi; e) les clauses du testament sont si vagues, si incertaines ou si capricieuses que la bonne administration et la distribution équitable des biens de la personne décédée seraient difficiles ou impossibles à effectuer suivant la présente loi; f) les clauses du testament sont contraires à l'intérêt public. 46(2) Cas de nullité (2) Lorsque le testament d'un Indien est déclaré entièrement nul par le ministre ou par un tribunal, la personne qui a fait ce testament est censée être morte intestat, et, lorsque le testament est ainsi déclaré nul en partie seulement, sauf indication d'une intention contraire y énoncée, tout legs de biens meubles ou immeubles visé de la sorte est réputé caduc. S.R., ch. I-6, art. 46. APPELS 47 Appels à la Cour fédérale 47. Une décision rendue par le ministre dans l'exercice de la compétence que lui confère l'article 42, 43 ou 46 peut être portée en appel devant la Cour fédérale dans les deux mois de cette décision, par toute personne y intéressée, si la somme en litige dans l'appel dépasse cinq cents dollars ou si le ministre y consent.

BACKGROUND

[6]                The deceased's estate includes two trailer parks: G & M Trailer Court and Leonard Estate Trailer Park. The dispute concerns Leonard Estates Trailer Park. Both trailer parks are located on the Reserve.

[7]                The document which the appellant says expresses the testamentary intention of his grandfather in respect of Leonard Estate Trailer Park is dated April 5, 1999, is labelled "Re: Leonard Estates" and is addressed to "To whom it may concern". This document is signed by George Leonard, is witnessed by his wife, Roberta Nahanee and is acknowledged by John Kushniruk. It is on the letterhead of Halston Homes Limited. The document reads:

As of April 5^th 1999, I, GEORGE LEONARD, of COLD CREEK, KAMLOOPS, being of sound body and mind, hereby authorize that any agreements I may have with JOHN KUSHNIRUK, Dealer Principal of Halston Homes Limited, concerning the planning/development/ and financial dealings of LEONARD ESTATES, 240 G & MROAD, KAMLOOPS will be reverted to JAMES DUNLOP GEORGE LEONARD in the event of my untimely death or incapacity to conduct my affairs. [emphasis mine]

[8]                The meaning of this document can only be understood by reference to the agreement made between Halston Homes Ltd. and the deceased to develop pad sites on the property. The agreement of May 30, 1997, was prepared by Mr. Leonard's solicitor and reads in its entirety:

                                                                       

                                                JOHN GEORGE LEONARD

                                                            P.O. BOX 568

                                                        KAMLOOPS, B.C.

                                                                 V2C 5L2

                                           TELEPHONE/FAX (250) 573-5013

May 30, 1997

Attention: John Krushniruk

Halston Homes Limited

1021 Ricardo's Road

Kamloops, B.C.

V2H 1G7

Dear Sirs:

Re: Agreement to Develop Pad Sites for Leonard Estates Trailer Park

Further to your letter to me dated May 21, 1997, and our discussion today, I am taking this opportunity to confirm our agreement for you to develop trailer pads in my next trailer park business known as "Leonard Estates" located on the Kamloops Indian Reserve No. 1 adjacent to my existing trailer park known as G & M Trailer Court.

1.       Halston Homes Limited (Halston) will develop a maximum of sixty trailer pads on my property for the purpose of selling new manufactured homes;

2.      Halston will have exclusive right to sell manufactured homes on the developed trailer pads;

3.      The new owner of each manufactured home will have the right to enter into a month to month agreement with me (Leonard) for the rental of the developed trailer pad;

4.      Halston will finance the costs of developing the sixty trailer pads, such costs will include access to sewer, water, Hydro, and B.C. Tel, and the installation of mailboxes, street lighting and landscaping all estimated to total at $6,000.00 per pad;

5.      Upon completion of the sale of a manufactured home by Haston [sic], a total of $8,000.00 will be collected from the sale price of which $2,000.00 will be paid to Leonard and $6,000.00 will be paid to Halston;

6.      At present, each pad will be rented out at $225.00 per month and may be adjusted by mutual agreement between Halston and Leonard during the development of the sixty pads;

7.      Should Halston incur costs greater than $6,000 per pad, then Halston has the right to recover its costs from a percentage of the monthly rental payment;

8.      Halston shall manage the operations of Leonard Estates at no cost during the period of development of the sixty pads;

9.      Leonard and Halston will set up a joint bank account for Leonard Estates at the main branch of the Bank of Montreal with any cheques requiring the signatures of both Leonard and John Kushniruk and the account shall be closed upon completion of the development of the sixty pads unless agreed to in writing otherwise;

10.      Leonard and Halston shall mutually agree that on all operation and maintenance costs of the trailer park which will include a maintenance person and bookkeeper;

11.      Halston shall provide monthly financial statements on the development and operating costs to Leonard;

12.      All funds in excess of development and operating costs shall be the property of Leonard and shall be paid to Leonard from time to time and at the closing of the joint account;

13.      In the event that Leonard becomes incapacitated or dies, Halston will have the right to recover all its costs;

Should you agree with the foregoing, please indicate your agreement by executing this letter in the appropriate space below.

Yours truly,

John George Leonard

Halston Homes Limited hereby agrees by the placement of its seal hereon below with the signature of it [sic] authorized officer the 4 day of June, 1997.

        "John Krushniruk"

_______________________

Authorized Director/Officer

[emphasis mine]

OTHER AGREED FACTS

[9]                The appellant and respondent, Her Majesty the Queen, recognized the Minister's delegate's decision was made pursuant to section 42 of the Act.

[10]            Other facts agreed to between the appellant and the respondent Her Majesty the Queen were as follows.

[11]            First, if an Indian dies and leaves a will, the role of INAC is to appoint an executor of the will. If an Indian dies intestate INAC's duty is to appoint an administrator of the estate. The preliminary step upon the death of an Indian is for INAC to determine whether there is a will.

[12]            Second, it was agreed in the case of the deceased that INAC searched the records of its B.C. Regional Office and the Provincial Wills Registry but did not locate a will. It is stated there is no requirement that a will must be registered in the Provincial Wills Registry or filed with INAC.

[13]            Third, it is agreed that in the absence of a will, pursuant to the Act, the heirs of the deceased are his wife Roberta Nahanee; his three children, Barbara Leonard, John Leonard and Charles Leonard and his four grandchildren including the appellant.

[14]            It is acknowledged that on July 24, 2002, John Kushniruk provided to INAC a copy of his May 30, 1997 agreement with the deceased and that this agreement "sets out the terms of the business arrangement between the Deceased and Mr. Kushniruk (on behalf of Halton Homes Ltd.) to develop pad sites in Leonard Estates Trailer Park".

[15]            Fifth, the Agreed Statement of Facts refers to a letter dated September 19, 2002, in which Mr. Kushniruk provided additional information to INAC "about why he believes the Document is testamentary in nature". That letter speaks, in part, to the May 30, 1997 agreement between John George Leonard and Halston Homes Ltd. Mr. Kushniruk also mentioned an agreement between the deceased and his grandson, James Leonard, "to take over the running of the park has been bound to" and that "it was a relief to have the responsibility of running the park taken over". It stated the agreement provided that "60 pads would be developed by Halston Homes" and that "the present economy and availability of mobile home pads have stalled the development of the remaining 6 pads but that could change as the economy turns". [emphasis mine]

[16]            Sixth, the Agreed Statement of Facts refers to a letter also dated September 19, 2002, which the appellant provided INAC. It reads:

Leonard Estates is a mobile home park consisting of 54 homes. The park was born from an idea shared between myself, George Leonard and John Kushniruk to expand on G & M Mobile home park. This existing mobile home park (G & M), was managed by myself for 12 years during which I was given power of attorney. Having been raised by George since I was a child, I grew to become his right hand man in most of his business affairs until family politics forced my [sic] to seek employment elsewhere.

The years that followed the idea to expand continued but was separated from G & M to become Leonard Estates. On one of my visits home, my grandfather had made it clear to me that this newer mobile home park was to be mine one day as a reward for many years of loyal service and for having made him so proud at succeeding at another difficult career of drilling and blasting. My grandfather was also a driller and blaster in his younger days. It was at this time, George had John Kushniruk draw up the will to ensure this would happen. Having seen the weaknesses in this will, I had John Kushniruk draw up another including the parcel number that the original didn't have but I didn't have the heart to agitate my grandfather in his now deteriorating condition. I also took comfort in the fact that my grandfather must have another will to confirm his intentions. All that is except for Leonard Estates. For that, I feel special as it was a special relationship him and I had. He was a father to me and I knew his intentions. Though this will may be vague and legally picked apart, it shows one thing for certain. The one thing that makes a will a will and that is intent. George Leonard intended for me to have that park; I know; the family knows; and none have come forward to challenge this. I have gone through great pains to see this park run properly. I will continue to go through great pains if it is decided this will is not valid for I will never give up appealing until I see George's will upheld. [emphasis mine]

[17]            Seventh, the Agreed Statement of Facts said that on November 5, 2002, the Minister's delegate, Sheryl Yoner, decided the document is not testamentary in nature because it could have taken effect prior to the death of the deceased.                        

THE PROCEEDING AND THE ISSUES

[18]            Pursuant to Justice MacKay's order of April 2, 2003, the following parties filed written memoranda with the Court: counsel for the appellant and the principal respondent Her Majesty the Queen. Also filing were counsel for Roberta Nahanee and counsel for Barbara Leonard.

[19]            All counsel appeared at the hearing with counsel for Roberta Nahanee, at the invitation of the Court, making short submissions and counsel for Barbara Leonard not making formal submissions but simply stating her client wanted her father's wishes to be carried out.

[20]            I identify the following issues arising in this case:

(1)        Was the appeal properly brought under section 47 of the Act?

(2)        What is the proper standard of review?

(3)        Can the Minister's decision that the document is not a testamentary instrument withstand scrutiny when measured against the proper standard of review and, if so, can the offending provision be severed?

ANALYSIS

Issue 1:           Is section 47 of the Act engaged?

[21]            The issue whether the appeal was properly brought under section 47 of the Act was raised in the written submissions of Roberta Nahanee. She claims the decision was made under section 45 of the Act which is excluded from being appealed by the very terms of section 47 of the Act.

[22]            On the other hand, counsel for the appellant and counsel for the Minister agreed the decision had been made under section 42 of the Act.

[23]            The point was decided against counsel for Roberta Nahanee in Justice Dawson's decision in Morin v. Canada, [2001] F.C.T. 1430.

[24]            In Morin, supra, Justice Dawson decided the source of the Minister's jurisdiction to accept a written instrument as a will is contained in section 42 of the Act which confers jurisdiction over matters and causes relating to the grant and revocation of probate of wills.

[25]            She held section 45 of the Act is not a provision which confers powers on the Minister. It is a section which makes express that Indians may devise or bequeath property by will, that Indians are not bound by the same formal requirements found in provincial wills legislation, and requires that no will is of legal force or effect until either approved by the Minister or admitted to probate by a Court. She added the purpose of section 45 is to make certain the rights of Indians, not grant power to the Minister.

[26]            I find useful to reproduce paragraphs 45 through 49 of her reasons for judgment.

¶ 45       Thus, I conclude that by conferring in section 42 of the Act jurisdiction upon the Minister with respect to matters and causes testamentary, Parliament conferred jurisdiction equivalent to jurisdiction with respect to the grant and revocation of probate of wills and of administration, together with jurisdiction over matters incidental to that. Parliament thus reposed in the Minister jurisdiction similar to that exercised by the surrogate or probate courts. The principal duties of a court of probate is said in Halsbury's Laws of England, vol. 17(2), 4th ed. (London: Butterworths, 2000), paragraphs 75 and 103, to be to decide whether or not a document is entitled to probate as a testamentary instrument, and to decide who is entitled to be constituted the personal representative of the deceased.

¶ 46       One of the primary characteristics of a testamentary instrument is that it is intended to take effect after the testator's death. Therefore to determine a document to be a testamentary instrument requires that a conclusion be made about testamentary intent.

¶ 47       This interpretation of what is encompassed within section 42 of the Act is consistent with the particular powers reposed in the Minister pursuant to section 43 of the Act. Section 43, without restricting the generality of the powers conferred in section 42, makes clear that the Minister may do such things as appoint and remove executors and administrators, and authorize them to execute the terms of wills.

¶ 48       All of the matters referenced in section 43 of the Act are incidents of the historic probate jurisdiction.

¶ 49       The jurisdiction conferred upon surrogate courts with respect to "matters and causes testamentary" did not encompass jurisdiction over all matters relating to estates. Historically, the superior courts maintained an important jurisdiction. The superior courts were the proper forum for resolution of issues relating to the construction of a will admitted to probate, and were the proper forum where there were circumstances which showed that a strict investigation should be made of all of the facts surrounding the making of an alleged will before admitting it to probate. In that latter circumstance the case could be removed to the superior court which had ampler and more effective machinery for such investigation. See, for example, Jones v. Momberg (1915), 8 W.W.R. 1059 (Man C.A). Superior courts also exercised jurisdiction in respect of dependent relief legislation. [emphasis mine]

[27]            I take from these paragraphs in Morin, supra :

(1)        The powers conferred upon the Minister by section 42 of the Act are equivalent or similar to that exercised by the surrogate or probate courts whose principal duties are to decide whether or not a document is entitled to probate as a testamentary instrument, and to decide who is entitled to be constituted the personal representative of the deceased;

(2)        One of the primary characteristics of a testamentary instrument is that it is intended to take effect after the testator's death which requires a conclusion to be made about testamentary intent;

(3)        The jurisdiction conferred upon surrogate courts with respect to "matters and causes testamentary" did not encompass jurisdiction over all matters relating to estates because historically, superior courts maintained an important jurisdiction which was, inter alia, the resolution of issues relating to the construction of a will admitted to probate.

[28]            I close on this point by quoting the following extract from the reasons for judgment of Justice Dickson, then a member of the Manitoba Court of Appeal, in A.G. v. Canard (1972), 30 D.L.R. (3d) 9 at page 16:

Section 42 et seq. constitute a comprehensive testamentary code in respect of Indians. It was plainly the intention of Parliament, in enacting those sections that provincial legislation on the subject of wills, devolution of estates and surrogate procedures applicable to others would not apply to Indians or to the administration of their estates unless the Minister so directed.

Issue 2:           The standard of review

[29]            On the second issue, that of the proper standard of review, applying the four factors of the pragmatic and functional approach outlined in many decisions of the Supreme Court of Canada, including Law Society of New Brunswick v. Ryan, [2003] S.C.R. 20 (presence or absence of a privative clause; the expertise of the tribunal; the purposes of the legislation and the nature of the question). I agree with the views expressed by counsel for the applicant that the proper standard of review in this case is correctness because there is no privative clause, the Minister has no particular expertise in the interpretation of the document, the purpose of the legislation is to provide an estate administration regime for individual Indians not affected by polycentric factors and the question is primarily one of law.

[30]            In particular, the question involved here, unlike in Morin, supra, was not focussed on John George Leonard's testamentary intent but rather on the legal requirements of a will in the context of the Indian Act.

Issue 3:           Is the Minister's decision correct?

[31]            Counsel for the Minister does not dispute the document of April 5, 1999 in question was in writing, was signed by the deceased and could be interpreted as conferring legal rights in relation to property. However, according to the Minister, the document does not reveal the deceased's intention to deal with Leonard Estates on his death.

[32]            Counsel for the Minister invokes two reasons why the document, on its face, does not evince a testamentary intent, that is, a document intended to take effect after the testator's death. First, counsel for the Minister argues the document was not entirely dependent on death for its operation because it could have taken effect, prior to death, if the deceased had become incapable of conducting his affairs. Second, she argues, the business arrangement between Mr. Leonard and Halston Homes Ltd. could have been concluded prior to either the incapacity or the death of the deceased and thereby render the document ineffective, ie. the development and sale of 60 trailer pad sites in Leonard Estates could have been completed prior to the death of the deceased rendering the document negatory.

[33]            Counsel for the Minister, in her written memorandum, also stated the extrinsic circumstances surrounding the document did not evince testamentary intent because it was written in the context of a business arrangement which depends on the May 30, 1997 agreement for its validity. It was written on Halston's letterhead and it is a reasonable inference that it was intended to modify paragraph 13 of the agreement. In addition, the deceased apparently made no other will or provision in respect of his other assets and it would appear he never consulted his lawyer in respect of the document. Finally, his spouse who witnessed the document and is a respondent in the appeal, takes the position the document is not a testamentary instrument.

[34]            I am not prepared to give any credence to the external circumstances cited by the Minister's counsel because the Minister's delegate did not invoke that point to negate testamentary intent in relation to the document.

[35]            The same can be said of the second point raised by counsel for the Minister, ie. the possible completion of the sixty pads at Leonard Estates. This was not a ground relied upon by the Minister to hold the document was not a will and, in any event, Leonard Estates was not fully developed at the time of George Leonard's death which left the deceased some rights under his May 30, 1997 agreement with Halston Homes transmittable on his death.

[36]            It is clear the Minister's delegate decided the document did not meet the requirements of a will because "the document may actually take effect prior to death", ie. he could have become incapacitated before he died.

[37]            I note counsel for the appellant's argument the document expresses George Leonard's wishes to dispose of certain legal rights flowing from his May 30, 1997 agreement with Halston Homes on his death. Those rights, he argued, would revert to the appellant, his grandson "in the event of my untimely death or incapacity to conduct my affairs", an either-or situation, where, in fact, George Leonard died and never became incapacitated.

[38]            Counsel for the appellant further argued there was no requirement in the Indian Act a will must only deal with the disposition of property on the testator's death, a condition that appears to be an internal stricture which the Minister has placed on Indian wills which is not consistent with the broad acceptance of testamentary documents mandated by the Act.

[39]            Assuming without deciding the position of the Minister's delegate was unimpeachable on the point of the possibility of the document taking effect before George Leonard's death, in my view, she erred by not considering whether, in the circumstances, the offending term "or incapacity to conduct my affairs" should be severed from a clearly testamentary disposition, ie. the reversion on his death to his grandson of certain legal rights flowing from the deceased agreement with Halston's Homes.

[40]            Authorities cited by counsel for the appellant support the proposition of severance: the power to sever and admit to probate a testamentary disposition from one, contained in the same document, which is operative before death:

(1)        Feeney's Canadian Law of Wills, 4^th ed. (Markham: Butterworth's 2000) at 1.1, 1.7, 1.22;

(2)        Wolfe v. Wolfe, [1902] 12 I.R. 246 (K.B.); and

(3)        Perry v. Mercer, [1971] N.J. No. 7.

[41]            Counsel for the Minister sought to narrow the breadth of the severance doctrine by arguing its inapplicability where, as here, the document gives the same interest to the same person in two different circumstances. I do not read the authorities cited by counsel for the appellant as imposing such a limitation.

[42]            I add another factor to the appropriateness of severance in the particular circumstances of this case. Clearly, in George Leonard's mind, he wanted, either on his death or if he should become incapable of conducting his affairs, that his agreement with Halston Homes enure to his grandson. Incapacity or death could not co-exist together; one had to precede the other. In the circumstances of this case, the incapacity provision of the April 5, 1999 document became redundant or moot and should be severed for otherwise it would defeat George Leonard's testamentary intentions.

[43]            For these reasons, I find the document to be a testamentary document which must be given effect to by the Minister.

[44]            I express no views on what rights flow to the appellant from the document; that issue is, as I understand it, to be decided by other courts.

[45]            In view of my finding, I did not deal with the appellant's alternative argument to the effect the incapacity provision in the document was void ab initio.

[46]            This appeal is allowed with costs from the estate of George Leonard payable to the appellant.

"François Lemieux"

                                                                                                                                                              

                                                                                            J U D G E           

OTTAWA, ONTARIO

MAY 6, 2004

                                     FEDERAL COURT

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:       T-62-03

STYLE OF CAUSE: James Dunlop George Leonard

v.

Her Majesty the Queen in Right of Canada, (Minister of Indian and Northern Affairs), Roberta Nahanee, Tracy Goddyn, Barbara Leonard, Chuck Leonard, John Leonard, Sandy George and Rusty Watts

PLACE OF HEARING:         Vancouver, British Columbia

DATE OF HEARING:           February 12, 2004

REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE LEMIEUX

DATED:          Ottawa, Ontario, May 6, 2004

APPEARANCES:

Mr. Roger D. Lee                      FOR APPELLANT

Ms. Janice Rodgers                   FOR RESPONDENT,                         Her Majesty the Queen

Ms. Teressa Nahanee                FOR RESPONDENT,                         Roberta Nahanee

Ms. Marlene S. Harrison           FOR RESPONDENT,                         Barbara Leonard

SOLICITORS OF RECORD:

Davis & Company

Vancouver, British Columbia      FOR APPELLANT

Morris Rosenberg

Deputy Attorney General of Canada      FOR RESPONDENT,             Her Majesty the Queen

Teressa Nahanee

Barrister and Solicitor

Merritt, British Columbia                        FOR RESPONDENT,             Roberta Nahanee

Mair Jensen Blair

Kamloops, British Columbia                  FOR RESPONDENT, Barbara Leonard          

Dennis M. Nielson

Barrister and Solicitor

Calgary, Alberta                                    FOR RESPONDENTS,           Tracy Gordon, Chuck Leonard and John Leonard