1. Introduction
The recent case, Kurt v Kurt and Sullivan,[1] is another will rectification that became necessary because of an admitted drafting solicitor’s error. But the case also raises additional issues, including the old rule, sometimes referred to by its Latin name, cum duo inter se pugnantia reperiuntur in testamento, ultimum ratum est.[2] Thus, if two testamentary gifts are irreconcilable, the last gift prevails on the ground that it is the last expression of the testator’s intention. However, as we shall see, the court will, if possible, try to reconcile the two.[3] Indeed, the rule is often said to be one of last resort, or a rule of despair.[4]
2. Facts
The facts are complex. This is a simplified version.
Donald and Culleen Kurt each made a primary and a secondary will in 2013. They had four children, David, Kim, Kerry, and Kelly, as well as eight grandchildren. They did not benefit David in their wills because he had been given shares in Donald’s insurance company. Donald and Culleen also established a charitable foundation (the ‘Foundation’). Donald died in 2016 and Culleen died 42 days later. I have italicized problematic provisions in the wills for ease of reference.
Donald’s Primary Will
Paragraph 3(b) of this Will left the residue of his estate to Culleen if she survived him by 30 days.
Paragraph 3(c) of that Will directed that Donald’s interest in a house in Kitchener that Kelly occupied be transferred to her if Culleen failed to survive him by 30 days.
Donald’s Secondary Will
Paragraph 3(c) of this Will left the residue of his ‘Primary Estate’ to Culleen if she survived him by 30 days.
Paragraph 3(e) of that Will left a legacy of $800,000, less the value of the property left to her under paragraph ‘3(c) of this my Last Will and Testament’ to Kelly.
Paragraph 3(d) of the Will left a legacy of $800,000 to Kim if Culleen should not survive him by 30 days. And paragraph 3(f) the Will left the same amount to Kerry if she should survive him.
Culleen’s Primary Will
Paragraph 3(c) directed that Culleen’s interest in the Kitchener property be transferred to Kelly if she survived her.
This Will left the residue of the Primary Estate to the Foundation if Donald should predecease her.
Culleen’s Secondary Will
Paragraph 3(d) of this will left a legacy to Kelly of $800,000 less the value of the Kitchener property that was being transferred to her under paragraph 3(c) of the Primary Will.
This Will also left the residue of the Secondary Estate to the Foundation.
3. Positions of the Parties
The parties were the plaintiff, Kelly, and the defendants, the executors of Donald’s and Culleen’s Estates, the trustees of the Foundation, and the drafting solicitor and his firm. They agreed that:
(a) since Culleen survived Donald by more than 30 days, paragraph 3(c) of Donald’s Primary Will was inoperative and Kelly was therefore not a beneficiary of Donald’s Primary Estate;
(b) the reference to the Primary Estate in paragraph 3(c) of Donald’s Secondary Will was incorrect and the residue of Donald’s Secondary Estate was properly transferred to Culleen since she survived Donald by more than 30 days;
(c) the Kitchener property was properly transferred to Kelly pursuant to paragraph 3(c) of Culleen’s Primary Will;
(d) the value of the Kitchener property was $422,750 at the time of the transfer and so the amount of $377,250 (the difference between $800,000 and $422.750) was properly paid to Kelly pursuant to paragraph 3(d) of Culleen’s Secondary Will.
However, Kelly took the position that since she survived Donald and there was no property being transferred to her under paragraph 3(c) of Donald’s Primary Will or under paragraph 3(c) of his Secondary Will, it was clear from paragraph 3(e) of Donald’s Secondary Will that Donald’s Estate owed her $800,000.
In the alternative, Kelly invoked the irreconcilable gifts rule mentioned above. She argued that paragraphs 3(c) and 3(e) in Donald’s Secondary Will are irreconcilable and therefore, reading that Will as a whole, the later gift in paragraph 3(e) should be read as overriding the gift in paragraph 3(c).
The other parties disagreed with this interpretation, arguing that the gift in 3(e), being a ‘gift over’ was ineffective. They argued further that paragraph 3(e) in Donald’s Secondary Will contained a drafting error, and that the reference to paragraph 3(c) in paragraph 3(e) of the Secondary Will was intended to refer to paragraph 3(c) of Donald’s Primary Will, which was inoperative since Culleen survived him by more than 30 days.
4. Analysis and Judgment
Justice Valente began his analysis by outlining the court’s task in interpreting a will. For that purpose it may sit in ‘the testator’s armchair and consider the will, as well as indirect evidence of surrounding circumstances. Save for a small number of exceptions, the court may not normally consider direct evidence of the testator’s intentions. One of those exceptions is that the court may consider the testator’s instructions to the drafting solicitor to establish a drafting error. His Honour referred to the following authorities for this exception: Robinson Estate v Robinson,[5] Daradick v McKeand Estate,[6] The Bank of Nova Scotia Trust Company v Haugrad,[7] and Gorgi v Ihnatowych,[8] all of which admitted the testator’s instructions to the drafting solicitor in evidence to ascertain the testator’s intentions and to correct an unintentional error by the drafting solicitor. His Honour also applied Lipson v Lipson,[9] in which the court held that when it is readily apparent that there are mistakes in a secondary will considered by itself, it is appropriate for the court to read both the primary and secondary wills together as one will. And then the court can add or delete words if satisfied that:
(i) upon a reading of the will as a whole, it is clear on its face that a mistake has occurred in the drafting of the will;
(ii) the mistake does not accurately or completely express the testator’s intentions as determined from the will as a whole;
(iii) the testator’s intention must be revealed so strongly from the words of the will that no other contrary intention can be supposed; and
(iv) the proposed correction of the mistake, by the deletion of words, the addition of words or both must give effect to the testator’s intention, as determined from a reading of the will as a whole and in light of the surrounding circumstances.[10]
Justice Valente noted the obvious error in paragraph 3(c) of Donald’s Secondary Will and the parties’ agreement on that point. His Honour also recognized the drafting error in paragraph 3(e) of that will, namely that it purported to give property to Kelly in accordance with paragraph 3(c) of the same will. It was an error, since paragraph 3(c) of Donald’s Secondary Will is a residuary clause and makes no reference to property being given to Kelly (whereas paragraph 3(c) of his Primary Will does). The error failed accurately to express Donald’s intention as determined from reading his two wills together. Doing so made it clear that the error was made in the Secondary Will. Since paragraph 3(c) of Donald’s Primary Will is inoperative because Culleen survived him by more than 30 days (as agreed by all the parties). it must follow that paragraph 3(e) of Donald’s Secondary Will, which speaks about the same asset being transferred to Kelly, is also inoperative. This is clear from Donald’s intention expressed in both of his wills. In his Honour’s opinion, the reference to ‘the value of the property being transferred to’ Kelly in paragraph 3(e) of Donald’s Secondary Will reveals his intention very clearly so that no other interpretation is possible. This was clear also from Donald’s use of the phrase ‘being transferred’, which is a reference to a present act that did not occur because Culleen survived him by more than 30 days.
His Honour proposed to correct the error in paragraph 3(e) of Donald’s Secondary Will by deleting the words ‘of this my Last Will and Testament’ and replacing them with ‘of my Primary Will’.
This comported with the direct extrinsic evidence of the drafting solicitor, who confirmed that the reference to paragraph 3(c) in paragraph 3(e) of Donald’s Secondary Will was intended to be a reference to his Primary Will. He also admitted that he mistakenly forgot to include in paragraph 3(e) of Donald’s Secondary Will the provision that the gift should be paid only if Culleen failed to survive him by thirty days. The solicitor also testified that in Donald’s instructions he made it clear that he wanted to benefit his daughters equally and that there was never a suggestion that Kelly would receive the house in addition to an $800,000 legacy.
His Honour accepted the evidence of the drafting solicitor, which was supported by his handwritten notes made contemporaneously during his meetings with Donald. Moreover, his evidence was not challenged by any conflicting evidence.
—
It followed that there was no occasion or need to apply the rule that the second of two irreconcilable gifts will be preferred.
[1] 2023 ONSC 6599.
[2] That is, when two things repugnant to each other appear in a will, the last one shall stand.
[3] See, e.g., Re Burke [1960] OR 26 at 32 (CA); Re Crombie (1978), 23 NBR 2d 139 (QB).
[4] Re Potter’s Will Trusts, [1974] Ch 70 at 77, per Lord Greene MR. And see also Re Kaptyn Estate, 2010 ONSC 4293 at para 162, per Brown J.
[5] 2011 ONCA 493.
[6] 2012 ONSC 5622.
[7] 2016 ONSC 8150.
[8] 2923 ONSC 1803.
[9] 2009 CarswellOnt 7474 (SCJ).
[10] Kurt, supra, para 38.
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Written by: Albert Oosterhoff
Posted on: March 18, 2024
Categories: Commentary, WEL Newsletter
1. Introduction
The recent case, Kurt v Kurt and Sullivan,[1] is another will rectification that became necessary because of an admitted drafting solicitor’s error. But the case also raises additional issues, including the old rule, sometimes referred to by its Latin name, cum duo inter se pugnantia reperiuntur in testamento, ultimum ratum est.[2] Thus, if two testamentary gifts are irreconcilable, the last gift prevails on the ground that it is the last expression of the testator’s intention. However, as we shall see, the court will, if possible, try to reconcile the two.[3] Indeed, the rule is often said to be one of last resort, or a rule of despair.[4]
2. Facts
The facts are complex. This is a simplified version.
Donald and Culleen Kurt each made a primary and a secondary will in 2013. They had four children, David, Kim, Kerry, and Kelly, as well as eight grandchildren. They did not benefit David in their wills because he had been given shares in Donald’s insurance company. Donald and Culleen also established a charitable foundation (the ‘Foundation’). Donald died in 2016 and Culleen died 42 days later. I have italicized problematic provisions in the wills for ease of reference.
Donald’s Primary Will
Paragraph 3(b) of this Will left the residue of his estate to Culleen if she survived him by 30 days.
Paragraph 3(c) of that Will directed that Donald’s interest in a house in Kitchener that Kelly occupied be transferred to her if Culleen failed to survive him by 30 days.
Donald’s Secondary Will
Paragraph 3(c) of this Will left the residue of his ‘Primary Estate’ to Culleen if she survived him by 30 days.
Paragraph 3(e) of that Will left a legacy of $800,000, less the value of the property left to her under paragraph ‘3(c) of this my Last Will and Testament’ to Kelly.
Paragraph 3(d) of the Will left a legacy of $800,000 to Kim if Culleen should not survive him by 30 days. And paragraph 3(f) the Will left the same amount to Kerry if she should survive him.
Culleen’s Primary Will
Paragraph 3(c) directed that Culleen’s interest in the Kitchener property be transferred to Kelly if she survived her.
This Will left the residue of the Primary Estate to the Foundation if Donald should predecease her.
Culleen’s Secondary Will
Paragraph 3(d) of this will left a legacy to Kelly of $800,000 less the value of the Kitchener property that was being transferred to her under paragraph 3(c) of the Primary Will.
This Will also left the residue of the Secondary Estate to the Foundation.
3. Positions of the Parties
The parties were the plaintiff, Kelly, and the defendants, the executors of Donald’s and Culleen’s Estates, the trustees of the Foundation, and the drafting solicitor and his firm. They agreed that:
(a) since Culleen survived Donald by more than 30 days, paragraph 3(c) of Donald’s Primary Will was inoperative and Kelly was therefore not a beneficiary of Donald’s Primary Estate;
(b) the reference to the Primary Estate in paragraph 3(c) of Donald’s Secondary Will was incorrect and the residue of Donald’s Secondary Estate was properly transferred to Culleen since she survived Donald by more than 30 days;
(c) the Kitchener property was properly transferred to Kelly pursuant to paragraph 3(c) of Culleen’s Primary Will;
(d) the value of the Kitchener property was $422,750 at the time of the transfer and so the amount of $377,250 (the difference between $800,000 and $422.750) was properly paid to Kelly pursuant to paragraph 3(d) of Culleen’s Secondary Will.
However, Kelly took the position that since she survived Donald and there was no property being transferred to her under paragraph 3(c) of Donald’s Primary Will or under paragraph 3(c) of his Secondary Will, it was clear from paragraph 3(e) of Donald’s Secondary Will that Donald’s Estate owed her $800,000.
In the alternative, Kelly invoked the irreconcilable gifts rule mentioned above. She argued that paragraphs 3(c) and 3(e) in Donald’s Secondary Will are irreconcilable and therefore, reading that Will as a whole, the later gift in paragraph 3(e) should be read as overriding the gift in paragraph 3(c).
The other parties disagreed with this interpretation, arguing that the gift in 3(e), being a ‘gift over’ was ineffective. They argued further that paragraph 3(e) in Donald’s Secondary Will contained a drafting error, and that the reference to paragraph 3(c) in paragraph 3(e) of the Secondary Will was intended to refer to paragraph 3(c) of Donald’s Primary Will, which was inoperative since Culleen survived him by more than 30 days.
4. Analysis and Judgment
Justice Valente began his analysis by outlining the court’s task in interpreting a will. For that purpose it may sit in ‘the testator’s armchair and consider the will, as well as indirect evidence of surrounding circumstances. Save for a small number of exceptions, the court may not normally consider direct evidence of the testator’s intentions. One of those exceptions is that the court may consider the testator’s instructions to the drafting solicitor to establish a drafting error. His Honour referred to the following authorities for this exception: Robinson Estate v Robinson,[5] Daradick v McKeand Estate,[6] The Bank of Nova Scotia Trust Company v Haugrad,[7] and Gorgi v Ihnatowych,[8] all of which admitted the testator’s instructions to the drafting solicitor in evidence to ascertain the testator’s intentions and to correct an unintentional error by the drafting solicitor. His Honour also applied Lipson v Lipson,[9] in which the court held that when it is readily apparent that there are mistakes in a secondary will considered by itself, it is appropriate for the court to read both the primary and secondary wills together as one will. And then the court can add or delete words if satisfied that:
(i) upon a reading of the will as a whole, it is clear on its face that a mistake has occurred in the drafting of the will;
(ii) the mistake does not accurately or completely express the testator’s intentions as determined from the will as a whole;
(iii) the testator’s intention must be revealed so strongly from the words of the will that no other contrary intention can be supposed; and
(iv) the proposed correction of the mistake, by the deletion of words, the addition of words or both must give effect to the testator’s intention, as determined from a reading of the will as a whole and in light of the surrounding circumstances.[10]
Justice Valente noted the obvious error in paragraph 3(c) of Donald’s Secondary Will and the parties’ agreement on that point. His Honour also recognized the drafting error in paragraph 3(e) of that will, namely that it purported to give property to Kelly in accordance with paragraph 3(c) of the same will. It was an error, since paragraph 3(c) of Donald’s Secondary Will is a residuary clause and makes no reference to property being given to Kelly (whereas paragraph 3(c) of his Primary Will does). The error failed accurately to express Donald’s intention as determined from reading his two wills together. Doing so made it clear that the error was made in the Secondary Will. Since paragraph 3(c) of Donald’s Primary Will is inoperative because Culleen survived him by more than 30 days (as agreed by all the parties). it must follow that paragraph 3(e) of Donald’s Secondary Will, which speaks about the same asset being transferred to Kelly, is also inoperative. This is clear from Donald’s intention expressed in both of his wills. In his Honour’s opinion, the reference to ‘the value of the property being transferred to’ Kelly in paragraph 3(e) of Donald’s Secondary Will reveals his intention very clearly so that no other interpretation is possible. This was clear also from Donald’s use of the phrase ‘being transferred’, which is a reference to a present act that did not occur because Culleen survived him by more than 30 days.
His Honour proposed to correct the error in paragraph 3(e) of Donald’s Secondary Will by deleting the words ‘of this my Last Will and Testament’ and replacing them with ‘of my Primary Will’.
This comported with the direct extrinsic evidence of the drafting solicitor, who confirmed that the reference to paragraph 3(c) in paragraph 3(e) of Donald’s Secondary Will was intended to be a reference to his Primary Will. He also admitted that he mistakenly forgot to include in paragraph 3(e) of Donald’s Secondary Will the provision that the gift should be paid only if Culleen failed to survive him by thirty days. The solicitor also testified that in Donald’s instructions he made it clear that he wanted to benefit his daughters equally and that there was never a suggestion that Kelly would receive the house in addition to an $800,000 legacy.
His Honour accepted the evidence of the drafting solicitor, which was supported by his handwritten notes made contemporaneously during his meetings with Donald. Moreover, his evidence was not challenged by any conflicting evidence.
—
It followed that there was no occasion or need to apply the rule that the second of two irreconcilable gifts will be preferred.
[1] 2023 ONSC 6599.
[2] That is, when two things repugnant to each other appear in a will, the last one shall stand.
[3] See, e.g., Re Burke [1960] OR 26 at 32 (CA); Re Crombie (1978), 23 NBR 2d 139 (QB).
[4] Re Potter’s Will Trusts, [1974] Ch 70 at 77, per Lord Greene MR. And see also Re Kaptyn Estate, 2010 ONSC 4293 at para 162, per Brown J.
[5] 2011 ONCA 493.
[6] 2012 ONSC 5622.
[7] 2016 ONSC 8150.
[8] 2923 ONSC 1803.
[9] 2009 CarswellOnt 7474 (SCJ).
[10] Kurt, supra, para 38.
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