Is It A Will? You Be the Judge
The deceased left a will that divided his estate amongst his three children. The deceased also left the following note:
“Nov 3, 2014
The way I interpret any existing Will is Healy Lake is in 3 names Ken Ludlow Bob Ludlow Kathy Clubbe So on my demise they become the owners in joint tenancy & Susan is left out of Healy Lake property. However Susan shares any Cash available with Bob and Kathy on a one third basis. This should be changed so she gets cash up to the current value of Healy Lake Property, before the one third sharing should happen. Kenneth Robert Ludlow (wrote by hand) KRL
Must see Terry Fraser about his change KRL”
Was the note a codicil? The question was answered in the decision of Pattillo J. in Ludlow v. Clubbe, 2019 ONSC 941.
As a bit of background, the deceased, Ken Ludlow, had 4 children: Bob Ludlow, Kathy Clubbe and Susan Ludlow . He was estranged from the fourth child. At one point, the deceased had transferred his cottage to himself and his children Bob and Kathy. Susan was not but on title as she lived in B.C. and would not be able to enjoy the cottage. He later wanted to put the cottage in the names of himself and 3 of his children, including Susan. However, his son Bob did not agree to such a transfer.
The deceased discussed options with his lawyer (the “Terry Fraser” referred to in the note). One option discussed was to redo the deceased’s will, so as to provide for Susan, the child that was not on title to the cottage, with an equalizing bequest of cash.
The son argued that the note was not a testamentary document, but rather, simply the “musings” of the deceased with respect to potential changes to his will.
Justice Pattillo disagreed. He observed that “A holographic paper is not testamentary unless it contains a deliberate or fixed and final expression of intention as to disposal of property on death. Further, the onus is on the moving party to show, by the contents of the paper or by extrinsic evidence that the paper is of that character and nature: Bennett v. Toronto General Trusts Corp., 1958 CanLII 49 (SCC),  S.C.R. 392 at para. 5.”
He went on to find that the note clearly established a testamentary intention on behalf of the deceased. Further, the note “has a formal manner to it” which supported the conclusion that the deceased intended it to be of a testamentary nature. Justice Pattillo referred the manner in which the note was signed (see extract of note, above). Further, the note was put in an envelope and was found amongst the deceased’s papers. “By formalizing it like he did and putting it in an envelope, I am satisfied that Mr. Ludlow considered that he had created a formal document which he intended to finally have dealt with resolving Susan’s earlier exclusion from the ownership of the Cottage.”
Interestingly, Justice Pattillo noted that the deceased’s handwritten note was intended to equalize the gifting by the deceased. However, the note actually provided for a greater benefit for Susan, the daughter who was not on title. It gave her a cash bequest equal to the full value of the cottage. As it turned out, this was not an issue as the cash value of the estate was roughly equal to 1/3 of the value of the cottage.
Thank you for reading.