In the recent decision of Gordon v Gordon et al., 2022 ONSC 550, the Ontario Superior Court of Justice considered how it may intervene to give effect to a testator’s intentions.
In this case, the testator’s estate trustees sought an order for a certificate of appointment with a will limited to assets in the testator’s Primary Will. In the alternative, the applicants requested an order rectifying the Primary Will to exclude “Property” as defined in the Limited Will.
The Deceased ran a successful excavation company in the Ottawa Valley, accumulating total assets in excess of $34 million during his lifetime.
The Limited Will was created to address the disposition of property related to his business operation and included:
Any interest whatsoever that I own or enjoy at the time of my death in any closely held private corporation, including but not necessarily limited to ownership of indebtedness of, or shares in the capital stock of any such corporation … and any and all other private shares, and any assets held in trust (or otherwise) for me by any such corporation, including my corporations, and any shares or securities received in exchange or substitution for such shares or indebtedness.
Under the Limited Will, the estate trustees were also given absolute and unfettered discretion to deal with any other unspecified assets of the estate not requiring probate. The testator’s intention was that the Primary Will and the Limited Will were to be “complementary to one another”.
As discussed by the Court, the use of multiple wills is recognized by courts in Ontario as a valid method to reduce the tax payable pursuant to the Estate Administration Tax Act, 1998 SO 1998, c.34. citing:
Granovsky Estate v Ontario (1998), 156 DLR (4th) 557, at para 22, where Greer. J. highlighted that (a) the Estates Act, RSO 1990, c. E.21, is an administrative statute, not a taxing statute, and (b) testators have the right to organize their affairs in such a way as to result in their estates paying as little as possible in both estate fees and taxes.
The testator’s intention as expressly stated in the Limited Will was that the Primary Will and the Limited Will were to be “complementary to one another” and read harmoniously. The challenge here was that in the Primary Will, the testator simply stated that “I give all my property to my Estate Trustees upon the following trusts” (emphasis added). The following paragraphs dealt with personal property, debts and death taxes, conversion of assets, and specific bequeaths, but there was no carve out for the business property dealt with in the Limited Will.
The Court, however, agreed with the applicants that the testator’s intention could be carried out without rectifying the Primary Will. The Primary and Limited Wills had been executed on the same day by the testator, and further to affidavit evidence provided by the drafting lawyer, the Limited Will had been executed immediately after the Primary Will.
The ambiguity that was created on the face of the wills in light of the testator’s express intention to have the Primary Will and Limited Will read harmoniously permitted the Court to address this issue as a matter of construction rather than probate.
The Court, relying on Rondel v. Robinson Estate, 2011 ONCA 493, 106 O.R. (3d) 321, stated that the drafting lawyer’s affidavit evidence fell into the category of “extrinsic evidence” with respect to the Deceased’s circumstances and the circumstances surrounding the making of the will, which the Court is permitted to consider in matters of construction.
The Deceased’s intention that the Primary Will govern the distribution of all property other than that which fell within the definition of “Property” within the Limited Will was clear to the Court. The fact that the Limited Will had been signed after the Primary Will permitted the Court to find that, to the extent that there was any inconsistency in the terms of the subject matter of the Primary Will and the Limited Will, “the latter revokes the former only as to those parts in which they are inconsistent.” Niziol v Allen (2011), 2011 ONSC 7457 at para. 19, citing Fitzsimmons Estate, Re, (1939) 2 DLR 50 (NSSC) at para 52.
This case is interesting and an important reminder that, as drafting solicitors, it is essential to keep accurate records of the circumstances surrounding your client and the circumstances surrounding the execution of testamentary instruments. This is especially true today as much of our communications are done virtually, which may in some circumstances introduce new risks and responsibilities for wills and estates solicitors.
Thank you for reading.
Ian Hull and Susanne Myers