Mar 23, 2021

Summary of Wenkoff v Wenkoff Estate

Wenkoff v Wenkoff Estate, 2021 SKCA 5 (CanLII)
Contract Law - Formation - Contingent Upon Receipt of Independent Legal Advice
The appellant appealed the decision of a Queen’s Bench judge that dismissed his application for summary judgment (see: 2019 SKQB 325). The appellant had sued his deceased father’s estate, asking for a declaration that an agreement between them for the transfer of the deceased’s farmland was effective and enforceable. The agreement had been drafted by a lawyer in October 2017 but in 2018, the father died intestate, and without having signed the agreement. The lawyer deposed that he had advised the parties that the father should receive independent legal advice before executing the documents in order to avoid a challenge of incapacity or undue influence after his death from his other children. Due to the appellant’s delay in providing the lawyer with required information, the final agreement and the father’s review of it with another solicitor did not take place before his death. The chambers judge found that the agreement was contingent on the father receiving independent legal advice and dismissed the application. The grounds of appeal were that the chambers judge erred by: 1) deciding that the agreement was contingent on receipt by the father of independent legal advice; 2) failing to find that the contract had been partly performed so as to avoid the impact of the Statute of Frauds; and 3) failing to find that the appellant had not exercised undue influence over the deceased.
HELD: The appeal was dismissed. The court considered only the first ground. The standard of review was palpable and overriding error. It found that the judge had made no reversible error in deciding that the agreement was contingent on the deceased receiving independent legal advice.