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LEGAL REPORT/Wills & Estates carried out, it would effectively defeat the children's statutory right to apply for a variation of the will. If there are no assets left in the estate, there is no money to pay the judgment. This would result in a hollow victory for the children." The executor can be in a difficult position if he or she does try to defend a will according to a testator's intentions. Thunder Bay, Ont., lawyer Kevin Brothers refers to his case Bobyk v. Bobyk where his client, the surviving widow, challenged the will under the Family Law Act because she found it didn't adequately provide for her support. The deceased left her $800 per month from an estate valued at more than $800,000. "This illustrates the importance of the testator to indicate to his or her spouse, as well as to the executor, his intentions in providing for his spouse, as opposed to other family welcome to a new chapter in an illustrious history New editioN Fox on thE Canadian Law oF PatEnts, 5th Edition DonalD H. MacoDRuM This new edition of Canadian Patent Law and Practice provides a complete overview of Canadian patent law, including authoritative commentary, in one place. Fox's Canadian Patent Law and Practice, 4th Edition was repeatedly cited by the courts, including the Supreme Court of Canada. This fifth edition brings the statement of the law up to date while retaining the jurisprudence compiled by Dr. Fox insofar as it remains relevant. Fox on the Canadian Law of Patents, 5th Edition is the preeminent reference work for patent lawyers and agents in Canada. You benefit from: • Expert and focused coverage of all aspects of Canadian patent law • Insightful and authoritative interpretation of complex patent law by one of Canada's most respected and experienced Intellectual Property practitioners • Relevant up-to-date legislation, including the 1989 and 1996 statutory revisions • Regular updates to ensure relevancy and completeness of coverage ordEr # 981380-65203 $398 1 volume looseleaf supplemented book March 2013 anticipated upkeep cost – $287 per supplement (4 supplements per year) Supplements invoiced separately 978-0-7798-1380-3 Shipping and handling are extra. Prices subject to change without notice and subject to applicable taxes. AvAilAble Risk-FRee FoR 30 dAys order online: www.carswell.com Call toll-Free: 1-800-387-5164 in toronto: 416-609-3800 48 October 2013 www.CANADIAN L a w ye r m a g . c o m members. This is especially true in cases involving second marriages," says Brothers. This case, he adds, underlines the importance of trying to avoid the executor being caught in an untenable position in trying to have the provisions of the will enforced as well as in defending an action brought by the surviving spouse hurt by the lack of consideration by the testator. In Bobyk, the spouse was awarded her legal costs against the estate, which Brothers says further indicates the executor is in a very difficult position if he continues to defend litigation based on the earlier intentions of the testator. The primary duty of the executor is to follow the terms of the trust, observes Sherwood Park, Alta., sole practitioner Jason Morris. The duty of impartiality follows. "It should be no surprise that testators will draft instructions that treat some beneficiaries better than others, and that trustees will follow those instructions if they are valid. Giving testators the power to make those sorts of decisions is the point.  That your team loses the game doesn't mean the referee is being unfair." In Alberta, impartiality must be considered when planning the investment of the property in a trust. The level of need of the various beneficiaries is also a consideration "which suggests that in exercising their discretion they can be partial toward those beneficiaries with greater needs." Morris points to the Trustee Act, which also includes provisions that allow for property held for the benefit of a minor to be sold to provide for the minor's maintenance and education, even if the minor's interest in that property is contingent. That ends up to the advantage of the minor and the disadvantage of the party that would have otherwise taken the property in the absence of the contingency. That, says Morris, allows minors, too, to benefit from some legislated forms of impartiality. Nothing, he adds, can eliminate the duty of the trustee to be impartial. "If the 'rules' coming from the testator, the legislature, or the courts are themselves partial to minors, spouses, or the black sheep in the family, that doesn't change the trustee's duty to implement them fairly, and where they do have discretion, to exercise that discretion in a way that is impartial."

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