When making testamentary gifts in a Will, if a specific bequest fails for any reason, the assets in question will fall into the residue of the estate. However, if a gift of residue fails, the distribution of whatever assets are affected by the failure will be governed by the intestacy provisions set out in Part II of the Succession Law Reform Act, R.S.O. 1990, c. S.26.
The recent decision of Sabetti v Jimenez, 2018 ONSC 3523 in part considers the interpretation of a residue clause in order to determine whether there is a partial intestacy in respect of the estate of Ms. Valdes.
The applicant, Mr. Sabetti, was Ms. Valdes’ second husband. She had three adult children from her prior marriage. Ms. Valdes’ Will provided that the residue of her estate was to be divided into four equal shares. The first share was to be held in trust for Mr. Sabetti during his lifetime, and on his death, whatever amount was remaining was to fall into and form part of the residue. The remaining three shares were to be transferred to Ms. Valdes’ three children.
Mr. Sabetti claimed that because of the gift-over of his share of the residue, which provides that it is to form part of the residue, the beneficiaries of the first share of the residue were not named with sufficient certainty, and a partial intestacy must result. Ultimately, the Honourable Justice Dunphy concluded that Ms. Valdes’ intention was clear on the face of the will, and found that there was no partial intestacy.
In its decision, the Court goes through an interesting analysis of the residue clause, outlining the rules applicable to construction of documents. Where there are two possible interpretations, one of which creates an absurd result, and one of which is in line with the apparent intention of the maker of the document, the latter is to be preferred. It is also preferable to construe a will so as to lead to a testacy over an intestacy, if it is possible to do so without straining the language of the Will or violating the testator’s intention.
In this case, the Court found that to interpret the term of the residue according to Mr. Sabetti’s position would lead to an absurd result. In terms of Ms. Valdes’ intention, the Court was of the view that the intended beneficiaries of the remainder interest were clearly the other three shares of the residue. The Court found no difficulty in discerning the testator’s intention or in applying it, and was able to read the Will in such a way as to avoid an intestacy.
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In drafting testamentary documents, the careful and precise use of language is of the utmost importance. After all, once the testator is dead and their will takes effect, the testator is no longer around to clarify any potential misunderstandings or ambiguous terms.
There are plenty of problems that can arise when interpreting a Will, from bequests to charities which no longer exist to the proper use of “per stirpes”. Even the most seemingly straightforward terms used in testamentary documents can lead to a great amount of discord among those with an interest in an estate. Today, I’ll look at one particular term which seems innocuous enough: “next of kin”.
Dictionaries, such as the Oxford Dictionary, defines “next of kin” in a straightforward manner as “a person’s closest living relative or relatives”. While seemingly simple, this term has lead to confusion in the past. In 2003, the Court of Appeal addressed this issue in Thomann v. Armgardt Estate, 170 OAC 11. In that case, the deceased left a Will relating to her assets in Canada in which she left the residue of her “Estate in Canada” to her next of kin in equal shares. She also had a will relating to her assets in Germany. At the time of her death, the testator had one sister and nieces and nephews living in Germany, along with one niece and a great-niece and great-nephew living in Canada. The testator’s sister died, however, before the estate was distributed.
The application judge found that “next of kin” had to be interpreted in conjunction with “equal shares” such that the testator intended for her estate to be left to a plurality of beneficiaries. Additionally, based on the use of a German will (which only provided specific bequests to German relatives) and the Canadian will (which only made a specific bequest to a Canadian relative), the application judge found that each will was only meant to benefit relatives living in the country to which the will applied. The judge thus found that the testator intended to leave the residue of her Canadian estate to her relatives (niece, great-niece, and great-nephew) living in Canada equally.
The Court of Appeal, on the other hand, made it clear that “next of kin” is to be defined by its ordinary meaning, i.e. as being one’s closest living relatives. Hence the Court found that the estate was to be distributed to the estate of the testator’s sister.
While it’s important to be as specific as possible and always good to define terms wherever possible, this case perhaps best serves to illustrate the point that you can’t prepare for every possible misinterpretation.
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I recently came across the decision in Campbell v Campbell, 2017 ONSC 2139. This is a recent decision with respect to two motions brought within an application for the interpretation of the last will and testament (the “Will”) of the late Howard Campbell (the “Deceased”). While the decision focuses on the various procedural matters at issue in the motions rather than the interpretation question at issue in the application, the decision also provides a brief summary of the facts which raised an interesting question for me regarding the admissibility of extrinsic evidence.
The interpretation concerns the Deceased’s Will, which contains three seemingly incompatible bequests, as follows:
- Paragraph 3(b) of the Will directs the estate trustee “to pay my debts, funeral and testamentary expenses, and to transfer the residue of my estate to my wife, if she survives me for a period of thirty days, for her own use absolutely”;
- Paragraph 3(c) of the Deceased’s Will directs the estate trustee “to deliver to my wife, for her use and enjoyment for life, all articles of personal domestic and household use or ornament belonging to me at the time of my death…and on her death, to divide all such articles among my children…”; and
- Paragraph 3(d) of the Will directs the estate trustee “to divide the residue of my estate equally between my wife (if she survives me for a period of thirty days) and my children, Kim, Howard, Rory, Cherie, Gina, Casey and Patrick, if then alive…”.
There appear to be four possible interpretations of the Deceased’s Will based on the above clauses:
- One hundred percent of the estate is left to the Deceased’s wife;
- The Deceased’s wife is given a life interest in personal property, which is later to be divided amongst the Deceased’s children;
- Fifty percent of the Deceased’s estate is to be left to his wife, and the other fifty percent is to be divided amongst the Deceased’s children; or
- The Deceased’s wife and the Deceased’s children are each to receive one-seventh of the estate.
In interpreting wills, Courts must first look to the language of the will to ascertain whether the testator’s intention can be discerned from the will itself. If the Court is unable to determine the testator’s intention from the will alone, it may then consider the surrounding circumstances known to the testator at the time that he or she made his or her will.
The surrounding circumstances that may be considered include only indirect extrinsic evidence, and not direct extrinsic evidence. Indirect extrinsic evidence consists of such circumstances as the character and occupation of the testator, the amount, extent and condition of his property, the number, identity, and general relationship to the testator of the immediate family and other relatives, the persons who comprised his circle of friends, and any other natural objects of his bounty. Direct extrinsic evidence would include, for example, instructions given by the testator to his solicitor in respect of the preparation of his will, or direct evidence from other third parties about the testator’s intentions.
As discussed in the decision of Rondel v Robinson Estate, 2011 ONCA 493, an exception to the general rule that direct extrinsic evidence is not admissible is in circumstances where there is an “equivocation” in the will, meaning that the words of the will in question apply equally well to two or more persons or things. Equivocation should not be equated with either ambiguity or mere difficulty of interpretation
One of our recent blog posts discusses a case where extrinsic evidence was not permissible. In that case, the court found that the language of the will in question was not equivocal, and accordingly, extrinsic evidence was not admitted. However, in the facts described above, it appears that the Deceased’s Will may provide an example of a situation where there is an equivocation, given that there seem to be four alternative interpretations.
As further discussed in the Rondel v Robinson decision, when direct extrinsic evidence, such as third party evidence of a testator’s intentions are admitted, this can give rise to reliability and credibility issues. Accordingly, it is important that the admissibility of direct extrinsic evidence be restricted, and permitted only when the rules of interpretation and construction are insufficient to interpret equivocal language.
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There are new developments regarding the Estate of Maurice Sendak, the famous American author and illustrator who passed away in 2012 and is best known for authoring Where the Wild Things Are. As reported by the New York Times, Mr. Sendak’s Estate was mostly successful in an ongoing legal dispute with the Rosenbach Museum and Library in Philadelphia.
First, a bit of background: prior to his death, the Rosenbach Museum housed a large archive of Mr. Sendak’s work, including many original illustrations and portions of his book collection. However, these items were not gifted to the Rosenbach Museum. Instead, under his Will, Mr. Sendak left his collection to the foundation created in his name prior to his death, and directed the creation of “a museum or similar facility” in his hometown of Ridgefield, Connecticut. However, Mr. Sendak did leave his “rare edition books” to the museum under his Will.
In 2014, the executors of Mr. Sendak’s Estate withdrew Mr. Sendak’s collection at the Rosenbach Museum. The museum subsequently commenced a legal proceeding in Connecticut probate court, arguing that the Estate had kept two books by William Blake and a selection of rare books by Beatrix Potter. According to the museum, these books fell into the category of “rare edition books” gifted to the museum under Mr. Sendak’s Will.
According to the article in the New York Times, the Connecticut court held that the William Blake books did not fit the definition of “rare edition books,” but that the Beatrix Potter books belonged to the museum. In the result, the Estate and Mr. Sendak’s foundation were awarded 252 of the 340 items that were in dispute between the parties.
I recently blogged about the famous Mexican architect Luis Barragan, and the broader public debates that often emerge about how best to preserve an artist’s legacy after his or her death. A similar debate has served as the backdrop to the legal wrangling between the museum and the Estate.
In a 2014 article, the New York Times profiled Mr. Sendak’s long-time housekeeper and caretaker Lynn Caponera, who was now acting one of his executors and the president of his foundation. The article highlighted some of the questions and criticisms that had been directed at the executors’ decision to withdraw Mr. Sendak’s collection from the museum, with some questioning the appropriateness of Mr. Sendak’s property in Ridgefield as a site for a museum and the skill and ability of Ms. Caponera to manage and administer Mr. Sendak’s foundation.
Thank you for reading and have a great weekend,
Umair Abdul Qadir
In Royston (Trustees of) v Alkerton, 2016 ONSC 2986, the executors of the estate of Recia Royston (“Recia”) sought the opinion, advice or direction of the court regarding the interpretation of a residue clause in Recia’s Will. The clause in question read as follows:
My Trustees shall divide the residue of my estate equally among my children alive at my death; but if any child of mind dies before me, leaving issue alive at my death, my Trustees shall divide the part to which that deceased would have been entitled if alive on [sic] at my death among that child’s issue in equal shares per stirpes.
Recia had five children: Michael, Peter, Laura, Alan, and John. Both Alan and John predeceased Recia. Alan had two children, Jacob and Jennifer; John had no children.
The question for the court was whether Jacob and Jennifer were entitled to the share of Recia’s estate to which their father, Alan, would have been entitled if alive. Laura’s position was that Recia intended the clause to capture only those of her children alive at the time of the execution of the will on May 13, 2014 (the “2014 Will”), namely Laura, Michael, and Peter.
The court found that Recia intended the plain meaning of the term “my children” in the clause in question, which would accordingly include all of Recia’s children. Recia had chosen to restrict her residue clause in certain ways – for instance, by specifying that it should benefit her children alive at her death, and that the children of any predeceased children should take in equal shares per stirpes. However, although she could have, she did not exclude Alan’s children, nor was there any indication that she intended to treat her children then living, or their issue, differently from the issue of her then deceased child.
The court also considered a prior will made in 1993, which contained a clause with different wording than the residue clause in the 2014 Will, but that the court held expressed the same intent. As there was no suggestion that Jennifer and Jacob were not entitled to share under the 1993 Will, this evidence corroborated a finding that they should similarly benefit under the 2014 Will.
The court also looked to another clause in the 2014 Will, and found that it was consistent with an intention on Recia’s part to benefit all of her children alive at her death, or their issue. This other clause stated that if any beneficiary died before attaining the age of 21, without issue, their share should be divided amongst Recia’s issue in equal shares per stirpes – which would include Jacob and Jennifer – thereby supporting the finding that Recia intended Jacob and Jennifer to benefit from the share of the estate that would otherwise have gone to Alan.
The court also made some comments with respect to the admissibility of direct extrinsic evidence, and ultimately did not admit much of the evidence from Laura, Jacob, Jennifer, and Recia’s brother, Larry Cohen, who was one of the executors of her estate. Following the case law in Rondel v Robinson Estate, 2011 ONCA 493, Barlow v Parks Estate,  OJ No 266, and Re Burke, 1959,  OR 26, the court considered the circumstances surrounding the preparation and execution of Recia’s will in its interpretation of the clause in question.
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In Thiemer Estate, a decision of the B.C. Supreme Court, 2012 BCSC 629 (CanLII), the deceased left an estate having a value of $20m. He left a will that provided for various specific legacies. The will also included a clause that directed the payment of “the balance of any money which I may have at the time of my death” to a common-law spouse. The will went on to define “money” as including “the balance of any money which I may have in any savings and current accounts in my name, any savings certificates, shares and bonds but excluding” insurance proceeds and RRSPs.
At the time of his death, the deceased had bank accounts, GICs, a mortgage receivable, and most relevant to the proceeding, shares in private companies having a value of $14m.
At issue in the interpretation application was whether the definition of “money” in the will, which referred to “shares”, meant that the value of the private companies was to be paid to the common-law spouse.
The decision sets out the relevant guiding principles, and case law on the definition of “money”.
The court decided that the reference to “shares” in the definition of “money” was not intended to include the shares in the private corporations. Essentially, the items included in the meaning of “money” were items that were in the form of cash, or which could be readily converted into cash. This might, then, include shares in publicly traded corporations. It was held, however, that the definition did not extend to shares in a private corporation, which by their very nature could not be readily liquidated.
This conclusion was fortified by other terms of the will. For example, the will established a spousal trust. If the spouse’s position on the definition of “money” was accepted, there would be very little left in the spousal trust. Further, the will provided extensive administrative powers to the trustees with respect to the ongoing operation of the companies. The spouse’s interpretation of “money” would render these powers “superfluous”.
The case is very instructive in the interpretation of wills, generally, and the application of those principles of interpretation in a specific context.
Thank you for reading,
Paul Trudelle – Click here for more information on Paul Trudelle.
Achieving a settlement is a major success in any estates dispute, but even the most comprehensive agreement cannot address every possible post-settlement wrinkle. The recent case of Viau v. Kozicki et al, 2010 ONSC 1682 is an example of how a court will interpret Minutes of Settlement following court approval (required in this case because there were minors).
The main issue in Viau was whether legal fees associated with administration of the estate after a judgment approving the settlement had been granted. The judgment incorporating the settlement stated as follows:
"THIS COURT ORDERS AND ADJUDGES that [the estate trustee], be at liberty to pay all of the debts of the [Estate], which include:
(xiv) Any legitimate debts of the [Estate], upon notification to [named Respondent], or approval of the court."
The court found that the wording of the order was not restrictive and did not establish caps on legal fees. Further solicitor’s work to complete the estate would have been anticipated. Of course, the legitimacy of the work or amount claimed would be subject to approval by the named Respondent or the court. In coming to this conclusion, the court did not look beyond the terms of the judgment. The judgment was clear and unambiguous and there was no need to review pre-settlement correspondence.
The decision illustrates a second principle: litigants should avoid unnecessary (or less efficient) proceedings. Specifically, when the named respondent challenged the legitimacy of the additional legal fees, the estate trustee commenced a passing of accounts proceeding. The court found that the issue concerning the legal fees could have been addressed by motion to the court without a passing of accounts and therefore the costs associated with the passing of accounts were not payable from the estate.
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When an irresistable force meets an immovable object, we appeal to the Supreme Court of Canada.
In Canada (Privacy Commissioner) v. Blood Tribe Department of Health, 2008 SCC 44, the force is the Personal Information Protection of Electronic Documents Act ("PIPEDA") and the object is solicitor-client privilege. Section 12 of PIPEDA grants the Privacy Commissioner express statutory power to compel a person to produce any records that the Privacy Commissioner considers necessary to investigate a complaint “in the same manner and to the same extent as a superior court of record”. The issue in Blood Tribe was whether this conferred a right of access to documents protected by solicitor-client privilege. The Court held unanimously that the broad grant did not contain the requisite specific express authority to override privilege.
The Court stated the rule that "general words of a statutory grant of authority to an office holder such as an ombudsperson or a regulator do not confer a right to access solicitor-client documents, even for the limited purpose of determining whether the privilege is properly claimed. That role is reserved to the courts. Express words are necessary to permit a regulator or other statutory official to “pierce” the privilege."
The Court also noted that "while the solicitor-client privilege may have started life as a rule of evidence, it is now unquestionably a rule of substance applicable to all interactions between a client and his or her lawyer when the lawyer is engaged in providing legal advice or otherwise acting as a lawyer rather than as a business counsellor or in some other non-legal capacity."
Speaking of the Supreme Court of Canada, the law you’re looking for just might be in the "unreported judgments" section of the Supreme Court’s user-friendly website. How does a Supreme Court decision go unreported?
Have a great day,
Yesterday, I set out a fact situation giving rise to a certain interpretation issue.
The fact situation is based on the decision of Moore J. in Rudling Estate v. Rudling, 2007 CanLII 51794 (Ont. S.C.).
There, the court held that the word "debt" in relation to Property B could not include within its meaning all of the taxes, expenses and other charges that the estate trustee is directed by the will to satisfy in addition to "debts" of the estate. The court found that all reasonable charges against the estate arising from the death of the deceased were, by the terms of the will, intended to be paid from the estate before the specific bequests of the two properties are made. That is, both A and B are to share the burden of the testamentary expenses.
The court found that the will could be fairly construed upon the language contained within its four corners, and without the need to resort to extrinsic evidence in order to interpret the meaning.
However, in light of the Orders Giving Directions made in the case, and the issues is raised in the pleadings, and “because I am aware of the recent tendency of Canadian courts to apply the ‘armchair rule’”, the court also addressed the interpretation of the will in light of the surrounding circumstances. The court examined the surrounding circumstances, hearing from ten witnesses over the course of seven days. After considering this evidence, the court concluded that the evidence did not support a conclusion that the testamentary expenses be borne by A alone.
Did you make the right call?
Consider the following interpretation issue, which was recently considered by the Ontario Superior Court of Justice:
The deceased left a will kit-type will directing that all “just debts, funeral and testamentary expenses, all succession duties, inheritance and death taxes, and all expenses necessarily incidental thereto, to be paid and satisfied by” my executor as soon as convenient after her death.
The will went on to provide that the following distributions were to be made:
To son A, Property A "with all loans, leins [sic], mortgages attached”.
To son B, Property B, “free and clear of all debt".
The residue was to be divided between A and B. For the purposes of the trial, the only assets of significance were the real estate: Properties A and B.
At the time of her death, the deceased had no debt other than certain mortgages registered on title against Property A.
The issue in dispute was what assets were to be chargeable for paying the deceased’s taxes, including estate administration tax and income taxes, and funeral and testamentary expenses.
A took the position that these expenses were paid out of the residue, and in the absence of any residue, were to be chargeable equally as against Property A and B. (Properties A and B were of equal value.)
B took the position that Property B was conveyed to him "free and clear of all debt", and thus, those expenses were payable out of Property A only.
What did the court do? Tune in tomorrow.
Until then, thank you for reading.