1. Introduction

Sometimes a testator inserts a condition in his will that renders a particular gift ineffective unless a stated event happens or fails to happen. The condition in this case is a condition precedent.[1] Such conditions often cause interpretive difficulties. A recent example is Baert v Baert.[2]

2. Facts

The testator, Jules Baert died at age 92 in 2023. His wife, Mrs Baert, survived him, as did his three sons, Kirk, Gregory, and Jeffrey. The testator completed and signed a stationer’s form Will in 2012, as did his wife. Kirk brought an application for an interpretation of  the will. His mother and his brothers were the respondents.

The dispositive parts of the Will were handwritten. They provided that the testator’s assets should be distributed as follows:

In the event of my death and my wife’s death, during our April 1 – April 30/12 trip to Florida, I leave my one-half interest in [a Vancouver condominium] to my son, Gregory, of Vancouver. The rest of my estate is to be equally divided between my three sons … taking into consideration the above legacy to Gregory, in order to provide an exactly equal distribution to each son.

The Will went on to state that the testator was not making any provision in the Will for his wife because he had already made adequate provision for her during his life. The dispositive provisions of the Will concluded with the following provision:

Any and all other cash assets and memorabilia are to be distributed as my executors agree.

The testator and his wife both survived the Florida trip.

The two questions to be determined were: (1) whether the gift of ‘the rest of my estate’ to the three sons was conditional on the testator and his wife having died during the 2012 trip; and (2) whether the ultimate gift of the distribution or all other cash assets and memorabilia had any practical effect.

3. Analysis and Judgment

Justice MD Faieta began his analysis by reference to the now familiar legal principle of interpreting wills, namely, that the court’s role is to determine the testator’s actual or subjective intention. To that end the judge should sit in the testator’s armchair and must consider all the surrounding circumstances at the time the will was made. However, the judge may not consider direct evidence of the testator’s intention.[3]

Justice Faieta stated that the residuary gift could be viewed as conditional on the testator and his wife having died in Florida in April 2012. However, he concluded that it should be interpreted as independent of that condition. As he states, if the residuary gift was conditional, there would have been no reason for the testator to state that he was not leaving anything further to his wife, nor to justify that decision by stating that he had already made adequate provision for her during their lives. He inferred from these statements that the residuary gift would be effective if Mrs Baert survived the trip to Florida. That interpretation was supported also by the evidence which showed the Mrs Baert held the bulk of the couple’s accumulated wealth, and by the fact that the testator and his wife both made wills using the same stationer’s form and neither named the other as a beneficiary. Finally, he noted that if the residuary gift were conditional, the Will failed to dispose of the residue.

With respect to the ultimate gift of all other cash assets and memorabilia, his Honour noted that it appeared after the residuary clause and therefore could not be effective since the testator had already disposed of his entire estate. For this conclusion he relied on the principle that if a will contains two absolute gifts of the same property, the court should reject the subsequent gift as repugnant and void. I agree that the subsequent gift was properly rejected because the property had already been disposed of in the residuary clause. But I query whether the quoted principle was appropriate in this case. After all, the residuary gift and the ultimate gift did not dispose of the same property, but only overlapped to some extent.

Although it would not be relevant here because all the property was disposed of in the residuary clause, there is another well-known principle that is sometimes referred to in cases like this. The principle is often referred to by its Latin name, cum duo inter se pugnantia reperiunter in testamento, ultimum ratum est. It means, if two inconsistent clauses appear in the same will and it is impossible to reconcile the two clauses, the last one prevails. Supposedly this is because the last clause is the last expression of the testator’s intention and should therefore be given effect. However, the principle is not an absolute rule. It will be disregarded, for example, if the inconsistency arises from two separate clauses in the will that give the same property to two different persons. In that case the beneficiaries will share the property as joint tenants, tenants in common, or in succession, depending on the circumstances. So also, if the application of the rule would result in an intestacy, the court typically prefers the first gift.[4]

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[1]    See Oosterhoff on Wills, 9th ed by Albert H Oosterhoff, C David Freedman, Mitchell McInnes, and Adam Parachin (Toronto: Thomson Reuters, 2021), §4.6. This section also speaks of wills that are themselves conditional.

[2]    2024 ONSC 2747.

[3]    His Honour referred to the following cases as authority: Trezzi v Trezzi, 2019 ONCA 978, para 13, per M Jamal JA; Re Kaptyn Estate, 2010 ONSC 4293, paras 30-38, per DM Brown J; Re Burke (1959) OR 26 (Ont CA), p 30; Re Rowland, [1963] 1 Ch 1, per Lord Denning in dissent.

[4]    See further Oosterhoff, footnote 1, supra, §13.3.1(k).