CONTRADICTING TESTIMONIES

BACKGROUND INFO:  Daniel Church was Gabby's insurance agent as well as her landlord and friend of her in-laws.  It is well possible that there might have been some personal interest by Mr. Church to see that his friends were awarded with custody of the little girls, with an eye on the money they represented. 

However, Kerry McLelland, (Gabby Kliim-Hansen's lawyer while she was alive) testified that Mr. Church had told him of a statement made by Gabby to Mr. Church indicating that she was having second thoughts about leaving the trusteeship in the hands of Carol Treich.

Mr. Church, being the landlord as well as a personal friend of Gabby's father-in-law, Daniel Kliim-Hansen, also had a hand in entering Gabby's home right after the accident, along with Mr. Kliim-Hansen.  To this day, what happened to all of Gabby's personal papers remains a mystery.  All of her personal correspondence (letters, etc.), driver's licence, passport and other miscellaneous papers such as bills disappeared.  The biggest question is, why?  Why would all of the paperwork be gone? 

One plausible explanation is that, whoever removed the paperwork was looking for an indication of a will in progress.  If Gabby had stated in that will (and there is basis to believe that she was working on one) that the children were to be raised by specific individuals other than Carol and Andrew Treich,  then there would be good reason to destroy it.

Even if there was no will in progress, the fact that all Gabby's personal papers were absent from the house suggests that someone removed them. The question still remains why, and does it indicate intent to try and stack the odds in their favour? 

THIS FIRST PORTION IS THE TESTIMONY GIVEN BY DANIEL CALVIN CHURCH, LIFE INSURANCE SALES, CALGARY, AB - EXAMINED BY MS. McMURCHIE

Q. (Ms. McMurchie) Now did you have any occasion to meet with Gabriella Kliim-Hansen with respect to life insurance?

A.  Yes I did.

Q.  Okay.  And can you tell us what meetings took place and what your discussions were?

A.  The first meeting took place in Easter weekend where we had discussed it with Gabe and Paul as far as the prospects of a life insurance program and estate planning with them.  We discussed it again briefly in May, about the end of May, and then not again until the end of July.  On the 19th of July, I set up an appointment with Gabe to actually write a policy for Gabe.

Q.  And at that time did you take a life insurance application?

A.  Yes I did.

Q.  I'm going to show you a copy of a document.  Is that a copy of the life insurance application in question?

A.  Yes it is.

Q.  And would you recall the date that that was filled out?

A.  It was filled out the 28th of July, 1992

Q.  Now, was that document filled out in you own handwriting?

A.  Yes it was.

Q.  Now in relation to the matters at issue in this court, Mr. Church, did you have discussions as to the beneficiary of the life insurance policy?

A.  Yes, we did.  It is normal when a person takes out a life insurance policy, of course, to name someone or something as the beneficiary.  And in this case Gabe named her two minor children as the beneficiaries of the proceeds of the policy.  And also at the same time it is not allowed or not permissible to pass proceeds or death benefits from a life insurance policy to minor children, so a trustee at that point has to be named.

Q.  Okay.  And did you have discussions with Gabe about the appointment of a trustee for these proceeds?

A.  Yes, I did.

Q.  And can you tell us -- I'm sorry, was this in the context of your business relationship and at that meeting?

A.  Yes.  That was one of a couple of different times where we had discussed various aspects of estate planning, and the day that we filled out the application, of course, it was discussed.  We had to fill out one section that states that.

Q.  Now as near as you can recall, can you relate to His Lordship what the discussions between yourself and Gabe were surrounding that matter?

A.  Okay.  At that time when Gabe had named the two minor children as trustees or as beneficiaries, pardon me, I had told her then that, you know, we had to name an adult as a trustee of the funds.  Gabe wasn't sure who to name as the trustee of the funds, so I suggested that maybe she name Dan Kliim-Hansen because he had helped her with some aspects of settling Paul's estate.  At that time she said no, she didn't feel that would be right.  So I suggested her parents, whom I had never met at that point in time, but I suggested them because parents being kind of helpful at times.  She had said then no she would definitely not have her parents as the trustee of the funds.  She didn't want to have that much money in their hands.  (This is an odd statement for Gabby to have made about her parents, if she actually said it at all)  I didn't pursue that avenue cause it's none of my business what she wants to do with that.  She did make the comment of would it be possible to have the trustee of the children or the guardian of the children look after the funds.  I said that would be a great idea.  It would only make sense.  At that point then she had said, well why don't I have Carol Treich, and, again, I think I had met Carol maybe once at that point in time, but she had said, well, why not have Carol do it then?  I said, "Great.  Good idea."  And we wrote it down as such.

Mr. Church goes on to describe discussions with Gabby as to the purpose of a trustee and what the funds of a life insurance policy is used for by the trustee.  He also describes how later (Aug. 10/92), Gabby has missed an appointment with a nurse to fill out some medical requirements and how he offers to drive her to the nurse so she can get this done.  They have lunch at McDonald's where he asks her if there is anything she'd like to change, or if the amount is correct.  According to him, everything is fine with the policy and he is to "..leave everything as is.  It's perfect".

During cross-examination by Ms. Kenny and the Court, Mr. Church is adamant that Gabby specifically stated that Carol Treich was to be the guardian of her children, and that she then named that guardian to be the trustee of the life insurance policy.

THIS SECOND PORTION IS THE TESTIMONY GIVEN BY KERRY WALLACE McLELLAND, LAWYER, (Member of the Law Society of Alberta) - EXAMINED BY MS. KENNY

Q. (Ms. Kenny)  And, Mr. McLelland, I understand that you have spoken to Mr. Dan Church surrounding these matters and the insurance policy that Gabriella took out; is that correct?

A.  Yes, that's correct.

Q.  Okay.  Can you tell me about your discussions with Mr. Church?  Why were you talking to him and what the conversations were about?

Ms. McMurchie interrupts at this point, saying that Mr. Church was not cross-examined on any conversation that he had with Mr. McLelland.  She seems not to want Mr.  McLelland to say anything which might contradict any testimony by Mr. Church.  The Court allows the questioning.

A.  Yes.  Just to give some background. I had been contacted -- to act with respect to the estate of Gabriella immediately after her death.  During the -- and I did take some steps initially in that regard.  And at a later point in time I referred the matter to another lawyer, but during the course of the time that I was acting in that aspect I did have two or three conversations with Mr. Church and during one of those conversations, and it would have been probably within the -- all three conversations would have probably been within a week to ten days, he indicated to me that while Gabriella was in his vehicle -- he was -- I believe he was driving her somewhere, she had indicated to him some concern.  Now I don't specifically recall whether or not it was -- the concern was raised before or after the sister, Paul's sister, had been appointed the trustee of the life insurance policy, but he did make reference to me of a conversation that he'd had with Gabriella such that she had had second thoughts about appointing Paul's sister as a trustee with respect to the life insurance policy.  Due to reasons -- something that had happened since the time of Paul's death.  He wasn't specific and I don't believe that she was specific to him or gave any reasons as to why she had second thoughts, but she had, or at least Mr. Church indicated to me, that Gabriella had second thoughts about appointing Paul's sister as the trustee of the life insurance policy.

Q.  Thank you Mr. McLelland

Ms. McMurchie:  I have no questions, My Lord.