Suduk v Duncan

In the matter of the estate of Susan Elizabeth Suduk, the deceased, the applicant, her adult daughter, sought an interpretation of the terms of the deceased’s will in the context of a family provision application. The deceased’s will directed the executors to hold a sum on trust for the applicant to provide an annuity of $40,000 per annum during her life. The applicant made a family provision application, and while it was pending, the executors made interim payments to her equivalent to the annuity amount. The family provision application was settled, and the court made orders providing for a legacy to be paid to the applicant and for a further sum to be held on trust to pay the net income to the applicant during her life. The executors deducted the total amount of the interim payments from the capital sum to be held on trust for the applicant. The applicant sought a declaration that she was entitled to receive the annuity under the original terms of the will until the family provision order took effect.

The court considered whether the applicant had the right to receive the annuity under the original terms of the will until the family provision order took effect. The court noted that the deceased’s will did not provide for the annuity to be paid until the family provision application was resolved. The court found that the applicant’s entitlement to the annuity was contingent upon the resolution of the family provision application, and therefore, the applicant did not have the right to receive the annuity under the original terms of the will until the family provision order took effect.

The court dismissed the applicant’s application and ordered that the applicant’s costs of the application assessed on an indemnity basis be paid from the estate of Susan Elizabeth Suduk deceased. The court held that the applicant’s entitlement to the annuity was subject to the resolution of the family provision application, and therefore, the executors were not required to pay the annuity until the application was resolved. The court also found that the executors were entitled to deduct the interim payments from the capital sum to be held on trust for the applicant.