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Probate, Construction, and Law Reform

1. Introduction

I have written about the difference between the Superior Courts’ Probate and Construction jurisdictions on several occasions.[1] It is important that we keep the differences distinct, but confusion about them continues to arise. Gordon v Gordon[2] is a recent case in which the differences also came to the fore.

2. Facts

Kenneth Gordon died in 2018, survived by his three children, Karen, Kristopher, and Kevin, and by his four grandchildren, his former spouse, and his girlfriend. He appointed Karen, Kristopher, and another person his executors. He made a Primary Will and a Limited Will on the same day in 2014 and the evidence was that the Primary Will was executed first. The two wills contained standard revocation provisions but provided expressly that neither will revoked the other.

In 2018 the executors brought an application  for probate limited to the assets disposed of by the Primary Will. Justice P MacEachern twice dismissed the application[3] and directed the executors to seek a determination from another judge on the question whether it was possible for the court to grant probate limited to the assets referred to in the Primary Will. The reason was that the Primary Will stated: ‘I give all my property’ to the Executors on trust.[4]

Thus, her Honour wanted another judge to construe the Primary Will. Presumably, she did this because she was aware of the different roles of a judge exercising her probate jurisdiction and a judge exercising her construction jurisdiction. She would also have been aware of the caveats expressed by some courts to the effect that the same judge should not normally hear both probate and construction matters together or successively. This is because the evidence admissible at the two stages differs and it would be difficult for the judge in the second stage to disregard evidence heard in the first stage. I refer to such caveats below.[5]

However, there is a problem with addressing the problem in this way. The court does not normally get involved in construing a will until after probate has been granted, for it must construe the will as probated. As the Honourable Maurice Cullity stated in a Comment:[6] ‘… there are two separate stages in will contests: first, to identify the words that constitute the will; and second, to determine what the words mean’. Here the stages are reversed and in effect this puts the cart before the horse.

The Limited Will stated that the two Wills were intended to be complementary to one another and that it disposed only of the assets described in it, which were mainly assets consisting of shares in private corporations. The Limited Will also contained an error. Paragraph 4(c) of that will purported to give one-third of the residue of the Estate to Karen, with a gift over to her issue and a further gift over on failure of issue to Kristopher’s Trust set out in paragraph 8(d)ii. There was no paragraph 8(d)ii in the Will.

In accordance with the direction of Justice MacEachern, the executors brought this application for construction of the Primary Will and the rectification of the Limited Will. It was heard by Corthorn J. There were some issues with the affidavits submitted by the leading executor and by the lawyer in support of the application. In the end they did not affect the outcome, but lawyers are well advised to take note of that part of the reasons and ensure that they follow the rules strictly in drafting affidavits. There was also a problem with the name of the Limited Will; it was called that in some instances but Limited Property Will in others. However, nothing turned on that.

3. Analysis

Justice Corthorn reviewed the law on the use of multiple wills. They are used principally to limit the amount of estate administration tax (‘EAT’) the executors have to pay under the Estates Administration Tax Act.[7] They achieve this result by including only those assets for which probate will be needed in the Primary Will, while including all other assets in the Limited Will.[8] Section 32 of the EATA requires the executors to disclose the value of the estate, but it permits them to disclose only the value of that part of the estate for which probate is sought and to pay the EAT only on that part.

Since the Primary Will gave ‘all my property’ to the Executors on trust, the question obviously arose whether they therefore had to disclose all the assets comprised in both the Primary and Limited Estates. Justice Corthorn resolved the issue in an innovative way. She concluded that the Primary Will did not have to be rectified to say that the testator was giving the Executors all property except the property comprised in the Limited Will.

She reached this conclusion by relying on the uncontradicted evidence that the Primary Will was executed first and the Limited Will second. Then she held that to the extent there was any inconsistency in the terms of the Primary Will and the Limited Will, the latter revoked the former to the extent of the inconsistency. As authority her Honour referred to two cases which considered whether more than one document can constitute a person’s will.[9] The cases in question noted rightly that this is possible, so long as the two documents are not inconsistent.

Such a revocation is called an implied revocation.[10] It arises when the second document does not contain an express revocation clause. Then, if the second document implicitly revokes part of the first document by disposing of the property dealt with in that part in a different way, the two documents together constitute the deceased’s will. However, the first document is revoked impliedly (and only in part) by the second document. Typically, the second document is made some time after the first. The two cases mentioned held that the wills were inconsistent and so the later document constituted the testator’s will.

With great respect, the facts in this case are quite different. Here there are not two documents, an earlier testamentary disposition which disposes of the entire estate and a later one that purports to replace the earlier one in part. Rather, here we have an earlier one that contains a mistake and one immediately following it which states expressly that the Primary Will is not to be revoked by the Limited Will. In other words, the Limited Will does not revoke the Primary Will expressly or impliedly. Thus, in my opinion, this attempt to resolve the problem does not work. I shall discuss whether there is another way to resolve the problem below.

Justice Corthorn then turned to the question whether the Limited Will could be rectified. She concluded without any real discussion that paragraph 4(c) contained a typographical error that should be rectified by changing ‘paragraph 8(d)ii’ to ‘paragraph 4(d)ii’. I shall come back to this as well.

While her Honour dismissed the application for a certificate of appointment, that dismissal was without prejudice to the executors pursuing the earlier application before Justice MacEachern for that purpose.

4. Critique

4.1 Resolution at the Probate Stage

The first question I want to raise is whether Justice MacEachern could have resolved the problems at the probate level. I believe that she could have.

A court of probate must determine that the testator had testamentary capacity, that there was no undue influence, and that the testator had knowledge of the contents of the will and approved them. Clearly, it must also ascertain what the assets are which the executors must administer, and on which EAT must be paid. As Cullity J has made clear, the jurisdiction of a court of probate is inquisitorial in nature, because its obligation is to determine what the last will of the testator is, for only that document is entitled to be probated.[11] For this purpose the court of probate sometimes has to interpret wills, but that power is strictly limited to their probate jurisdiction. If it is alleged that words have been inserted by mistake and should be deleted from the document, the court must interpret the document to ensure that it accords with the testator’s intentions.[12] For this purpose, the court of probate may consider extrinsic evidence, direct evidence of the testator’s intention, and even hearsay evidence.[13] If the court finds that words were indeed inserted by mistake, contrary to the testator’s intention, it can delete those words. However, a court of probate lacks the power to insert words in the will and therefore cannot replace the deleted words with others that the testator intended.

In my opinion, the determination of what ‘all my property’ in the Primary Will meant in the context of that Will and the Limited Will fell squarely within the jurisdiction of the Justice MacEachern at the probate stage. Clearly, the Primary Will contained an error that could be explained and understood by reference to the Limited Will. Even though she was not asked to probate the Limited Will, it was extrinsic evidence that she could consider. She could also consider the evidence that Karen and the lawyer included in their affidavits about the testator’s intentions. As noted above, a court of probate cannot insert new words into a will that were omitted by mistake, but it can delete words that were inserted in error. Thus, Justice MacEachern could have omitted the words ‘all my property’ from the Primary Will. That would render the meaning of the will uncertain, but that is something that could be determined by the court exercising its construction function.[14]

It is true that in Robinson Estate v Robinson[15] Justice Belobaba held that he lacked power to delete a revocation clause from a will because it was inserted by the drafting lawyer who had reviewed the will in its entirety with the testator. Thus, under an old rule,[16] he concluded that the testator was bound by the language of the will and was also bound by language intentionally inserted by the drafter. However, that old rule with its conclusive presumption has largely been rejected in modern cases in England and Canada.[17] Thus, in Re Morris[18] the court deleted an incorrect paragraph number (even though it was inserted by the solicitor, albeit erroneously), and left it to the court of construction thereafter to determine the meaning of the will as rectified. Thus, the old rule would not have prevented Justice MacEachern from deleting the words ‘all my property’.

Similarly, Justice MacEachern had jurisdiction to delete the incorrect paragraph number 8(d)ii from paragraph 4(c) the Limited Will, although she could not substitute the incorrect number with the correct one. It would then be left up the court of construction to determine what paragraph 4(c) of the probated will means. Although Justice MacEachern was not asked to probate the Limited Will, she would have jurisdiction over the Limited Will in other respects and could therefore delete the incorrect section number.[19]

4.2 Relevance of the Robinson Case

In her reasons Justice Corthorn relied on the Robinson case mentioned above. However, the reference to that case is problematic for two reasons. First, she notes that as a court of equity the court has jurisdiction to rectify a will. As the Honourable Maurice Cullity pointed out in his comment,[20] the Court of Appeal in that case assumed erroneously that Justice Belobaba at first instance was sitting as a court of construction when in fact he was exercising his probate jurisdiction. Justice Corthorn stated (at para 36), ‘As a court of equity, this court has jurisdiction to rectify a will …’ The Superior Court of Justice is indeed a court of equity (as well as a court of common law).[21] But that does not mean that it has power to rectify wills when exercising its construction function. As I explained in a recent blog[22] Superior Courts have always taken the view that they cannot use their power to rectify wills when they construe them, because doing so would mean that they would be making a will for the testator and that would be contrary to the statutory formalities for wills. However, in the course of interpreting wills, a Superior Court does have the power of ‘correcting errors and omissions by implication’[23] if: (a) it is satisfied that the will contains an inaccurate expression by the testator of her intentions; and (b) if it is clear from the will itself what words the testator had in mind when she made the error in the will or omitted words from the will.[24]

The second reason why the reliance on the Robinson case is problematic is that, in para 36 her Honour quotes from the decision at first instance of that case to list the ‘three situations in which the court has jurisdiction to rectify a will and thereby correct unintended errors’. However, those three situations apply to the court’s probate jurisdiction, not its construction jurisdiction.

While her Honour’s ‘rectification’ of the Limited Will was undoubtedly possible under the court’s power of ‘correcting errors and omissions by implication’, it was not a ‘rectification’ in the commonly understood sense of that word, that is, the equitable power to rectify inter vivos documents.

4.3 Sequential Resolution by the Same Judge

If my previous solutions to resolving the problems in this case are thought inapt, there may possibly be another way to address the problem that arose in this case. This would require the same judge to consider whether to grant probate and to interpret the will at the construction level. This is highly unusual because, as noted above, the kinds of evidence admissible in probate and in construction are different. As noted above, this would present an awkward problem for the judge. Having heard a wide range of evidence in the exercise of her probate jurisdiction, she would then, when she engaged in the construction exercise, have to disregard much of that evidence. That would be difficult for anyone and that was undoubtedly one reason why Justice MacEachern wanted another judge to interpret the will.

In Re Ali Estate[25] Dardi J opined that for these reasons, normally the judge exercising her probate jurisdiction should not then construe the will. In his Comment, the Honourable Maurice Cullity expressed the same caution.[26] However, Justice Dardi acknowledged that there may be exceptional situations in which the same judge can consider both matters in succession. She referred to Prouse v. Scheuerman[27] in which this happened. The testator filled out a Canadian Forces will inexpertly. In the bequest section he inserted the name of his friend, Mrs Scheuerman, and in the residue section that followed it he inserted the word ‘NIL’. The probate judge, Hardinge J, granted probate of the will and then went on to determine what the will meant. In other words, he then exercised the court’s construction jurisdiction and concluded that the testator intended to give his entire estate to his friend. In the course of his judgment, he quoted the following statement of Lord Esher MR in Re Harrison; Turner v Hellard:[28]

There is one rule of construction, which to my mind is a golden rule, viz., that when a testator has executed a will in solemn form you must assume that he did not intend to make it a solemn farce – that he did not intend to die intestate when he has gone through the form of making a will. You ought, if possible, to read the will so as to lead to a testacy, not an intestacy. This is a golden rule.

The Court of Appeal affirmed and endorsed the procedure used at first instance. In para 19, Southin JA  noted that the crucial question was whether the will was dispositive, since the testator did not say in the bequest section what he wanted to give. To make it dispositive, one has to read words into it that describe the property. Then in a trenchant statement typical of her Honour, she said in para 18:

If one starts with the proposition that Mr. Moiny, when he went to the trouble of signing this instrument, was not engaging in a piece of devilry intended to cause consternation and litigation, one is driven to the conclusion that he must have intended it to have a legal consequence. The only legal consequence which makes sense is that he intended Mrs. Scheuerman to have his estate.

In Conner Estate v Worthing,[29] Wilson J was dealing with a similar fact situation and followed the Moiny case.

Since the two Gordon wills were so inextricably intertwined and were meant to be read harmoniously and complementary to each other, this is therefore another possible approach to resolving the problem in this case. Thus, Justice MacEachern could have probated the will, construed it, and then, using Justice Southin’s language, that the testator ‘was not engaging in a piece of devilry intended to cause consternation and litigation’ she would have to conclude that the phrase ‘all my property’ was clearly an error and should be read as ‘all the property comprised in this my Primary Will’. The same reasons would apply to correcting the error in clause 4(c) in the Limited Will.

5. Law Reform

The problems posed by the Gordon Wills and the attempts to resolve them highlight the need for law reform to address such problems. The difficulties are two-fold: (1) the evidence admissible at the probate and at the construction stages is very different; and (b) the powers to correct errors and omissions at the two stages are very different. This can only be changed by legislation. I addressed such legislation in the blog I referred to above.[30] In it I recommend that Ontario should adopt legislation like that in force in Alberta and British Columbia. This would give the court exercising its probate jurisdiction wide powers to interpret a will for the purpose of probate and wide powers to rectify the will at probate, and it would give similar powers to the court exercising its construction jurisdiction.

But there is more to be said. Many problems of the kind encountered in the Gordon Wills arise in multiple wills cases. Such cases are much litigated because they have often been poorly drafted or poorly proofread. Multiple wills came into vogue to avoid the high taxes Ontario imposed under EATA and were endorsed in Granovsky Estate v Ontario.[31] If the province were to revoke EATA, which raises a relatively small amount of taxes and is a source of annoyance and for frustration for testators and those who administer estates, the reason for multiple wills will become effete and testators and their legal advisors will stop using them. That would remove a great burden from  the courts and the administration of estates. It is true that multiple wills may still be used occasionally, for example, for assets in different jurisdictions or to deal with different kinds of assets, such as property generally and intellectual property. But as the Robinson case illustrates, they often cause problems and those could be avoided by dealing with the entire estate in one will in which the drafter can address assets in different jurisdictions or assets of different kinds and can even appoint different executors to administer discrete assets.

[1]    See, e.g., Albert H Oosterhoff, ‘The Discrete Functions of Courts of Probate and Construction’ (2017), 46 Adv Q 316; Oosterhoff on Trusts, 9th ed by Albert H Oosterhoff, C David Freedman, Mitchell McInnes, and Adam Parachin (Toronto: Thomson Reuters, 2021), chapter 8 and §§16.6 and 13.7.

[2]    2022 ONSC 550.

[3]    On 26 March 2019 and 15 July 2019.

[4]    Emphasis supplied.

[5]    In §4.3, infra.

[6]    Maurice Cullity, ‘Rectification of Wills – A Comment on the Robinson Case’ (2012) ETPJ 127, p 141.

[7]    SO 1998, c. 34 (‘EATA’).

[8]    The wills typically also include an allocation clause that gives the executors power to move assets from one to the other if it turns out later that probate is or is not required for specific assets.

[9]    Re Fitzsimmons Estate, [1939] 2 DLR 50 (NSSC); Niziol v Allen, 2011 ONSC 7457.

[10]   See Re Davies, [1928] Ch 24, which discusses the effect of such a revocation as distinct from an express revocation. The case holds that it arises not when the two wills are inconsistent but when it can be deduced from the testator’s language (which falls short of an express statement of revocation) that he intended to revoke the previous will or part of it.

[11]   Otis v Otis (2004), 7 ETR 3d 221, 2004 CarswellOnt 1643 (SCJ), para 23.

[12]   Cullity, Comment, footnote 6, supra, at 132.

[13]   Ibid., at 135.

[14]   See, e.g., Re Morris; Lloyd’s Bank v Peake, [1971] P 63, [1970] 1 All ER 1057 (PD), in which the court of probate did just that.

[15]   2010 ONSC 3484 (SCJ, affirmed 2011 ONCA 493.

[16]   Guardhouse v Blackburn (1866), LR 1 P & D 109 (Prob Ct).

[17]   See, e.g., Re Morris, footnote 14, supra; Re Reynette-James, [1976] 2 WLR 161 (PD); Re Phelan, [1972] Fam 33 (PDA).

[18]   Ibid.

[19]   See, e.g., Re Silver Estate (1999), 31 ETR 2d 256 (Ont SCJ), application by executors of unprobated will to pass estate accounts; Carmichael v Carmichael Estate (2000), 184 DLR 4th 171 (Ont SCJ), court has jurisdiction to remove executors who had taken preliminary steps to administer the estate but had not obtained probate. And see also McLaughlin Estate v McLaughlin, 2016 ONCA 899, judge determined secondary will was valid, although it was not probated.

[20]   Footnote 6, supra. at p 131.

[21]   Courts of Justice Act, RSO 1990, c C.43, s 11(2).

[22]   ‘Validating Powers and Rectification Powers’, https://welpartners.com/blog/2022/03/validating-powers-and-rectification-powers/, §4.

[23]   See Law Reform Commission of British Columbia, Report on Interpretation of Wills (LRC 58, 1982), p. 43.

[24]   Ibid., p 46.

[25]   2011 BCSC 537, 69 ETR 3d 203, paras 44-47.

[26]   Cullity, Comment, footnote 6, supra, p 142.

[27]   2001 BCCA 100, 37 ETR 2d 313, often referred to as Moiny Estate.

[28]   (1885), 30 Ch D 390 at 393-94. The reasons at first instance in Moiny are not reported but their substance is reproduced in the appellate reasons.

[29]   2020 BCSC 150, 55 ETR 4th 193, affirmed 2021 BCCA 231. For a comment on the decision at first instance, see my blog, “Formalities, Probate, and Rectification: Conner Estate v. Worthing”. https://welpartners.com/blog/2021/09/formalities-probate-and-rectification-conner-estate-v-worthing/.

[30]   Footnote 22, supra. The blog reproduces the Alberta and British Columbia provisions.

[31]   1998 CarswellOnt 518, 21 ETR 2d (Gen Div).


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