1. Introduction
I have written elsewhere about rectification of wills and the different rules that apply when a court exercises its probate jurisdiction and when it exercises its construction jurisdiction.[1] Except in jurisdictions that have changed the rules by legislation,[2] the established rule is that in probate the court can delete words from a will that neither the drafter nor the testator intended in certain circumstances, but the court cannot add words to give effect to the testator’s intention. In contrast when the court exercises its construction jurisdiction it has a limited power to add words. When most of the provinces abolished their surrogate courts and transferred their jurisdiction to the superior court, those rules were not abolished. The superior court now has jurisdiction to decide on probate matters and on construction matters. But the jurisdictions remain distinct.[3]
The question arose, however, whether a judge could address probate and construction in the same proceeding, albeit successively. In a seminal judgment in Re Ali Estate,[4] Justice Dardi applied the rule that a court exercising its probate jurisdiction lacks power to add words to a will. Then she considered whether the judge, having granted probate, can immediately begin to interpret the will. She considered and applied the observation of Madame Justice Southin in Prouse v, Scheuerman,[5] that ‘ordinarily a question of construction is not properly addressed on an application for a grant’, although in that case Justice Southin endorsed it because of the unusual circumstances of the case. Justice Dardi expressed the opinion that the distinction between the two jurisdictions should normally be maintained, because the practice and procedure in the two jurisdictions, as well as the rules regarding admissibility of evidence are different. If the same judge were to consider both matters, albeit successively, it might be difficult for her to disregard evidence that was admitted for probate on the construction application.[6]
2. Conner Estate v Worthing: Trial Decision
In Conner Estate v. Worthing[7] the courts again considered the issue whether the same judge can consider probate and construction issues in one proceeding,[8] albeit successively. The case is significant because the courts held that in the circumstances the court at first instance was entitled consider these matters in one proceeding. It is also important because the courts held that the will was validly executed even though the witnesses’ attestation was abnormal. And it is instructive on how costs should be awarded and apportioned in such cases.
The testator, Ms Conner, and her husband, Mr Worthing, were married in 2002. They had no children together, but Ms Conner had two adult children from a prior relationship and other relatives. She died of cancer in 2013. The main asset of her estate was her house. She also had other assets that passed outside the will to her husband. She gave instructions to her solicitor to prepare her will and appointed him as her executor. The will was witnessed by two employees of the funeral home at which Ms Conner was making her funeral arrangements. They printed their names on the last page together with addresses and telephone numbers, but did not sign the will, since there was no signature line. They also initialled each page. The will contained a number of errors on its face. It purported to distribute 150% of the sale proceeds of Ms Conner’s house; it bequeathed the residue of the estate twice; and there were words missing in one of the paragraphs. The solicitor applied for probate and rectification of the errors. The husband argued that Ms Conner lacked capacity to sign the will when she affixed her signature, that she was unduly influenced by her sister, and that the will was not properly executed, because the witnesses had not signed it.
Since Ms Conner died before the Wills, Estates and Succession Act[9] came into force, the case was governed by the Wills Act,[10] which did not contain a power to rectify. The trial judge, relying on Prouse v. Scheuerman[11] and Re Ali Estate,[12] held that he could hear both the probate and construction matters in one summary trial. But he acknowledged in paragraph 51 that this is an exceptional way to proceed. On the formalities issue he held that section 4(c) of the Wills Act was satisfied. While s. 4 requires the testator to sign the will, s. 4(c) does not require the witnesses to sign, but only requires them to subscribe the will. He referred, inter alia, to Payne v. Payne, the facts of which were similar, and held that facsimiles or marks suffice for a subscription if the witnesses intended to witness the will. Accordingly, he held that the will was formally valid.
The trial judge also held that Ms Conner had capacity and knew and approved the contents of the will, and that there was no evidence of undue influence. Then he went on to rectify the will to correct the three errors by reference to the solicitor’s notes of a telephone conversation with Ms Conner and to her typed letter of instructions to the solicitor.
3. Costs Orders
The trial judge applied the modern rule that costs follow the success of the litigation except when the litigation is caused by the deceased. He awarded the executor and the litigation guardian (appointed to represent minor beneficiaries) special costs payable from the estate. The litigation guardian was entitled to these costs because the errors in the will made her attendance necessary and because the husband sought costs against her. The executor was entitled even though he caused the errors in the will, because he was acting in his capacity as executor and was not being sued for negligence. The trial judge awarded costs against Mr Worthing on the issues of capacity and undue influence, as well as on the issue of the formal requirements. However, since rectification was required, he awarded Mr Worthing his costs relating to the rectification on a full indemnity basis. And finally he ordered that the costs of the parties be allocated equally between the probate and rectification proceedings.
4. Appeal Decision
The Court of Appeal dismissed Mr Worthing’s appeal. On the formalities issue the court held that Mr Worthing did not identify a legal error by the trial judge, but simply sought a different conclusion. With respect to the capacity issue, the court found no error in the trial judge’s conclusion. Further, in a brief statement in paragraph 54, the court held that since the trial judge held the will to be valid, there was no reason to disturb his order rectifying the will. The Court of Appeal thus implicitly endorsed the trial judge’s act of deciding the probate issue and the construction issue in one proceeding. However, it must be remembered that this is an exceptional way of proceeding, as the trial judge recognized.
On the issue of costs, the Court of Appeal held that Mr Worthing had not demonstrated that the trial judge improperly exercised his discretion in awarding costs or in apportioning the costs equally between the probate and rectification proceedings. Because Mr Worthing failed to identify any errors on the part of the trial judge, but essentially sought to relitigate arguments that the trial judge rejected, and because there was little merit to his challenges to the will and the costs orders, Mr Worthing had to bear his own costs of the appeal and pay the respondents’ ordinary costs into the estate. Further, the respondents were entitled to special costs payable by the estate.
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[1] See, e.g., Oosterhoff on Wills, 9th ed. by Albert H. Oosterhoff, C David Freedman, Mitchell McInnes, and Adam Parachin (Toronto: Thomson Reuters, 2021), §§7.2 and 13.7.
[2] See, e.g., Wills and Succession Act, SA 2010, c W-12.2, s 39; Wills, Estates and Succession Act, SBC 2009, c 13, s 59.
[3] See Albert H. Oosterhoff, ‘The Discrete Functions of Courts of Probate and Construction’ (2017), 46 Adv Q 316.
[4] 2011 BCSC 537, 69 ETR 3d 203.
[5] 2001 BCCA 100, 37 ETR 2d 313 (usually referred to as Moiny Estate), para 3.
[6] Re Ali Estate, footnote 4, supra, paras 44-47. For an egregious case in which the judge at first instance improperly addressed both probate and construction matters in one proceeding, see Re Milne Estate, 2018 ONSC 4174. The Divisional Court reversed that decision at 2019 ONSC 579. See also Re Panda Estate, 2018 ONSC 6734, 42 ETR 4th 139, in which the court refused to follow the decision at first instance in Milne.
[7] 2020 BCSC 150, 55 ETR 4th 193, affirmed 2021 BCCA 231.
[8] It seems likely that the court in Daradick v McKeand Estate, 2012 ONSC 5622, 82 ETR 3d 324 adopted the same procedure, but without discussing the propriety of doing so. The court noted that the alternative to rectification is an action against the drafting solicitor. which would be very costly. For a similar statement, see Walker v George H Mendicott & Son (A firm), [1999] 1 All ER 685 (CA), in which the Court of Appeal strongly suggested that a disappointed beneficiary should first bring proceedings to rectify a will before bringing a negligence action.
[9] Footnote 2, supra.
[10] RSBC 1996, c 489.
[11] Footnote XX 5, supra.
[12] Footnote XX 4, supra.
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This paper is intended for the purposes of providing information only and is to be used only for the purposes of guidance. This paper is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive.
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Written by: Albert Oosterhoff
Posted on: September 29, 2021
Categories: Commentary, WEL Newsletter
1. Introduction
I have written elsewhere about rectification of wills and the different rules that apply when a court exercises its probate jurisdiction and when it exercises its construction jurisdiction.[1] Except in jurisdictions that have changed the rules by legislation,[2] the established rule is that in probate the court can delete words from a will that neither the drafter nor the testator intended in certain circumstances, but the court cannot add words to give effect to the testator’s intention. In contrast when the court exercises its construction jurisdiction it has a limited power to add words. When most of the provinces abolished their surrogate courts and transferred their jurisdiction to the superior court, those rules were not abolished. The superior court now has jurisdiction to decide on probate matters and on construction matters. But the jurisdictions remain distinct.[3]
The question arose, however, whether a judge could address probate and construction in the same proceeding, albeit successively. In a seminal judgment in Re Ali Estate,[4] Justice Dardi applied the rule that a court exercising its probate jurisdiction lacks power to add words to a will. Then she considered whether the judge, having granted probate, can immediately begin to interpret the will. She considered and applied the observation of Madame Justice Southin in Prouse v, Scheuerman,[5] that ‘ordinarily a question of construction is not properly addressed on an application for a grant’, although in that case Justice Southin endorsed it because of the unusual circumstances of the case. Justice Dardi expressed the opinion that the distinction between the two jurisdictions should normally be maintained, because the practice and procedure in the two jurisdictions, as well as the rules regarding admissibility of evidence are different. If the same judge were to consider both matters, albeit successively, it might be difficult for her to disregard evidence that was admitted for probate on the construction application.[6]
2. Conner Estate v Worthing: Trial Decision
In Conner Estate v. Worthing[7] the courts again considered the issue whether the same judge can consider probate and construction issues in one proceeding,[8] albeit successively. The case is significant because the courts held that in the circumstances the court at first instance was entitled consider these matters in one proceeding. It is also important because the courts held that the will was validly executed even though the witnesses’ attestation was abnormal. And it is instructive on how costs should be awarded and apportioned in such cases.
The testator, Ms Conner, and her husband, Mr Worthing, were married in 2002. They had no children together, but Ms Conner had two adult children from a prior relationship and other relatives. She died of cancer in 2013. The main asset of her estate was her house. She also had other assets that passed outside the will to her husband. She gave instructions to her solicitor to prepare her will and appointed him as her executor. The will was witnessed by two employees of the funeral home at which Ms Conner was making her funeral arrangements. They printed their names on the last page together with addresses and telephone numbers, but did not sign the will, since there was no signature line. They also initialled each page. The will contained a number of errors on its face. It purported to distribute 150% of the sale proceeds of Ms Conner’s house; it bequeathed the residue of the estate twice; and there were words missing in one of the paragraphs. The solicitor applied for probate and rectification of the errors. The husband argued that Ms Conner lacked capacity to sign the will when she affixed her signature, that she was unduly influenced by her sister, and that the will was not properly executed, because the witnesses had not signed it.
Since Ms Conner died before the Wills, Estates and Succession Act[9] came into force, the case was governed by the Wills Act,[10] which did not contain a power to rectify. The trial judge, relying on Prouse v. Scheuerman[11] and Re Ali Estate,[12] held that he could hear both the probate and construction matters in one summary trial. But he acknowledged in paragraph 51 that this is an exceptional way to proceed. On the formalities issue he held that section 4(c) of the Wills Act was satisfied. While s. 4 requires the testator to sign the will, s. 4(c) does not require the witnesses to sign, but only requires them to subscribe the will. He referred, inter alia, to Payne v. Payne, the facts of which were similar, and held that facsimiles or marks suffice for a subscription if the witnesses intended to witness the will. Accordingly, he held that the will was formally valid.
The trial judge also held that Ms Conner had capacity and knew and approved the contents of the will, and that there was no evidence of undue influence. Then he went on to rectify the will to correct the three errors by reference to the solicitor’s notes of a telephone conversation with Ms Conner and to her typed letter of instructions to the solicitor.
3. Costs Orders
The trial judge applied the modern rule that costs follow the success of the litigation except when the litigation is caused by the deceased. He awarded the executor and the litigation guardian (appointed to represent minor beneficiaries) special costs payable from the estate. The litigation guardian was entitled to these costs because the errors in the will made her attendance necessary and because the husband sought costs against her. The executor was entitled even though he caused the errors in the will, because he was acting in his capacity as executor and was not being sued for negligence. The trial judge awarded costs against Mr Worthing on the issues of capacity and undue influence, as well as on the issue of the formal requirements. However, since rectification was required, he awarded Mr Worthing his costs relating to the rectification on a full indemnity basis. And finally he ordered that the costs of the parties be allocated equally between the probate and rectification proceedings.
4. Appeal Decision
The Court of Appeal dismissed Mr Worthing’s appeal. On the formalities issue the court held that Mr Worthing did not identify a legal error by the trial judge, but simply sought a different conclusion. With respect to the capacity issue, the court found no error in the trial judge’s conclusion. Further, in a brief statement in paragraph 54, the court held that since the trial judge held the will to be valid, there was no reason to disturb his order rectifying the will. The Court of Appeal thus implicitly endorsed the trial judge’s act of deciding the probate issue and the construction issue in one proceeding. However, it must be remembered that this is an exceptional way of proceeding, as the trial judge recognized.
On the issue of costs, the Court of Appeal held that Mr Worthing had not demonstrated that the trial judge improperly exercised his discretion in awarding costs or in apportioning the costs equally between the probate and rectification proceedings. Because Mr Worthing failed to identify any errors on the part of the trial judge, but essentially sought to relitigate arguments that the trial judge rejected, and because there was little merit to his challenges to the will and the costs orders, Mr Worthing had to bear his own costs of the appeal and pay the respondents’ ordinary costs into the estate. Further, the respondents were entitled to special costs payable by the estate.
—
[1] See, e.g., Oosterhoff on Wills, 9th ed. by Albert H. Oosterhoff, C David Freedman, Mitchell McInnes, and Adam Parachin (Toronto: Thomson Reuters, 2021), §§7.2 and 13.7.
[2] See, e.g., Wills and Succession Act, SA 2010, c W-12.2, s 39; Wills, Estates and Succession Act, SBC 2009, c 13, s 59.
[3] See Albert H. Oosterhoff, ‘The Discrete Functions of Courts of Probate and Construction’ (2017), 46 Adv Q 316.
[4] 2011 BCSC 537, 69 ETR 3d 203.
[5] 2001 BCCA 100, 37 ETR 2d 313 (usually referred to as Moiny Estate), para 3.
[6] Re Ali Estate, footnote 4, supra, paras 44-47. For an egregious case in which the judge at first instance improperly addressed both probate and construction matters in one proceeding, see Re Milne Estate, 2018 ONSC 4174. The Divisional Court reversed that decision at 2019 ONSC 579. See also Re Panda Estate, 2018 ONSC 6734, 42 ETR 4th 139, in which the court refused to follow the decision at first instance in Milne.
[7] 2020 BCSC 150, 55 ETR 4th 193, affirmed 2021 BCCA 231.
[8] It seems likely that the court in Daradick v McKeand Estate, 2012 ONSC 5622, 82 ETR 3d 324 adopted the same procedure, but without discussing the propriety of doing so. The court noted that the alternative to rectification is an action against the drafting solicitor. which would be very costly. For a similar statement, see Walker v George H Mendicott & Son (A firm), [1999] 1 All ER 685 (CA), in which the Court of Appeal strongly suggested that a disappointed beneficiary should first bring proceedings to rectify a will before bringing a negligence action.
[9] Footnote 2, supra.
[10] RSBC 1996, c 489.
[11] Footnote XX 5, supra.
[12] Footnote XX 4, supra.
—
This paper is intended for the purposes of providing information only and is to be used only for the purposes of guidance. This paper is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive.
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