In Craigmile Estate (Re), 2016 ABQB 125, the Court considered an application to vary the terms of a will to provide maintenance and support to the testator's adult dependent child. The application was brought by the Public Trustee and the Public Guardian on behalf of the adult child who suffered from a variety of mental disorders and was unable to earn a livelihood.
The testator had an Estate of approximately $800,000 comprised of bank accounts and a residence (valued at $300,000). Under the testator's will, she left her son approximately $193,000 from the bank accounts and a life interest in the family residence. A number of charities were to receive the remaining funds and the residence after the son's death.
The Public Trustee advised the Court that the son’s income from AISH and other public assistance was not adequate. He needed additional funds for companionship, clothing, grief counselling, vacation, recreation, a car and maintenance of the house. A trust fund had been set up for the son, but the fund was in decline.
After reviewing the law, and confirming the testator’s moral and legal obligations to provide for her son, the Court effectively found that all available estate assets needed to be made available for the maintenance of the son, with any bequests to the charities being postponed until the son’s death. The Court ordered that the residence and the remainder of the Estate would be transferred into a separate trust for the maintenance and support of the son during his lifetime. The Public Trustee was given the power to sell the residence in certain circumstances and add the proceeds to the trust. The charities would receive specific bequests upon the son's death if sufficient funds remained. If sufficient funds did not remain, the Public Trustee was directed to seek further advice from the Court regarding the dispositions to the charities. The Court noted with approval that none of the charity beneficiaries opposed the application.