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Case Review: Ritchie v Hamilton

Testator’s Intention BC’s Recent Decision – Ritchie v Hamilton

In a recent decision from the British Columbia Supreme Court, Ritchie v Hamilton[1], 2024 BCSC 941, the Honourable Justice Lamb reviewed the legal framework and the key principles to be applied when interpreting a testamentary document.

The case seeks the declaration that the definition of “My Children” in the last Will and Testament (the “Will”) of Danny Lee Ball (the “Deceased”) was intended to refer only to Troy William Ritchie (“the Petitioner”) and to Tina Nicole Coell (“Ms. Coell”).[2]

The Petitioner is the Deceased’s stepson and the biological child of the Deceased’s second wife. Ms. Coell is the Deceased’s biological child by his second wife.[3]

The Respondents are the Deceased’s biological children by his first wife.[4]

Surrounding Circumstances

The Deceased had three significant romantic partners, three biological children, and three stepchildren.[5]

The Deceased and his first wife were married in 1968, and the respondents were born in 1968 and 1969. The Deceased had little contact with the respondents during their childhood.[6]

The Deceased entered a marriage-like relationship with the Petitioner’s mother in or about March 1973 when the petitioner was less than a year old. The Deceased became like a parent to the petitioner, though the Deceased did not formally adopt him. They maintained a close relationship throughout the Deceased’s life[7].

In 1979, Ms. Coell was born; she is the biological child of the Deceased and the Petitioner’s mother. The Deceased raised the Petitioner and Ms. Coell and remained close to them his entire life.[8]

In or about 1995, the Deceased entered a marriage-like relationship with Vennetta White (“Ms. White”), who had two children of her own.[9]

The Deceased made a Will dated September 15, 2018, in which he bequeathed the residue of his estate to Ms. White, unless she failed to survive him for five days, in which case the residue of his estate was to be divided by the petitioner, Ms. Coell and Ms. White’s two children (if they survived the Deceased by five days).[10]

The Will was prepared by Barbara J. Burns (“Ms. Burns”), notary public, and executed by the Deceased on January 21, 2022.[11]

On January 18, 2022, the Deceased met with Ms. Burns. When Ms. Burns asked the Deceased the full names of his children, biological or adopted, the Deceased only told her about the petitioner and Ms. Coell. She noted these names on a will instruction sheet.[12]

On January 21, 2022, the Deceased signed an enduring power of attorney appointing the Petitioner or Ms. Coell as his power of attorney.[13]

Analysis

Can the Deceased’s intention be discerned from the Will itself?

The Will lacks precision in its use of language[14]. There is a conflict between the definition of “My Children” and s. 8.2 of the Will that cannot be resolved by reading the Will as a whole.[15]

  1. Residue of Estate
  2. I direct my Trustee to divide the residue of my estate equally between my children;
  3. except if either child of mine has died before that date and one or more of his or her children are alive on that date, that deceased child of mine will be considered alive for the purposes of the division and the share created for that deceased child of mine will be divided equally among those of his or her children who are alive on that date;[16]

The ambiguity in the Will cannot be resolved by using the “four corners” approach which is summarized in Bradley Estate2023 BCSC 618 where Justice Gomery summarized the key principles to be applied when interpreting a testamentary document:

“[19] For the purpose of the case at hand, the most important principles are:

a) The task of a court construing a testamentary document is to determine the testator’s intention, and the starting point is the language of the will; Killam [ Killam2018 BCCA 64]at para. 52;

b) The will must be read as a whole in the light of any properly admissible extrinsic evidence; Thiemer [Estate2012 BCSC 629] at para. 45;

c) The court must ascertain the meaning of the words used by the testator, as opposed to what he or she might have meant to do; Thiemer at para. 46;

d) The court must read the words putting itself in the testator’s armchair in the light of facts and circumstances known to the testator; Thiemer at paras. 48 and 57; and

e) Previously decided cases are of limited assistance except in so far as they express general principles of construction; Thiemer at para. 51.”

Can the Deceased’s intention be determined by resort to the surrounding circumstances?

The surrounding circumstances confirm that the Deceased’s intention was to bequeath the residue of his estate to the Petitioner and Ms. Coell.[17]

The Deceased identified his children as the Petitioner and Ms. Coell and then leaving the residue to his children. The confusion arose from imprecise drafting of the Will itself.

Is there extrinsic evidence of the Deceased’s intent?

The extrinsic evidence is consistent with the interpretation of the Will in light of the surrounding circumstances, i.e. the Deceased intended to benefit the Petitioner and Ms. Coell. Most significantly, the notary public deposed that when she asked the Deceased who he wanted to inherit under his estate, he said “My Children”, and when asked the names of all his children, the Deceased only mentioned the Petitioner and Ms. Coell. The notary public recorded these two names on a will instruction sheet in the space indicated for “names and ages of children”.[18]

There is no evidence that the Deceased told anyone that he intended to leave any part of his estate to the respondents. The respondents themselves do not depose that the Deceased made any promises to them.[19]

Concluding Comments

The Court found that the Will’s language and the surrounding circumstances indicated that the Deceased’s intentions were clear and intended only to leave the residue of his estate to the Petitioner and Ms. Coell.

Given the ambiguity in the Will itself, the Court admitted extrinsic evidence of the Deceased’s intent.[20]

A takeaway from this case: when taking a testator’s instructions, drafting solicitors should ensure to record full detailed notes regarding the testator’s instructions. A drafting solicitor must be diligent to avoid acts or omissions which may be detrimental to the testator and the intended beneficiaries.

[1] Ritchie v Hamilton, 2024 BCSC 941

[2] Ibid at para 1

[3] Ibid at para 2

[4] Ibid

[5] Ibid at para 14

[6] Ibid at para 16

[7] Ibid at para 17

[8] Ibid at para 18

[9] Ibid at para 19

[10] Ibid at para 20

[11] Ibid at para 9

[12] Ibid at para 21

[13] Ibid at para 22

[14] Ibid at para 24

[15] Ibid at para 25

[16] Ibid at para 13

[17] Ibid at para 29

[18] Ibid at para 33

[19] Ibid at para 34

[20] Ibid at para 32

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