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Juriansz J.A.: |
[1] In this appeal, the appellant and Mr. Silverman ask the court to reconsider the common law position in Canada on the admissibility of direct extrinsic evidence of a testator’s intention in the face of an unambiguous will. There were two applications brought before the application judge. The first application was brought by the estate trustee, Sheldon Silverman, for advice and direction regarding the interpretation of a will executed by Blanca Robinson (the “2006 Canadian Will”) on August 23, 2006. The second application, supported by Mr. Silverman, was brought by a beneficiary, Dr. Richard Rondel, for an order setting aside the grant of probate and rectifying the 2006 Canadian Will by deleting the revocation clause. For the requested relief to be effective, Dr. Rondel and Mr. Silverman also require the phrase “other than property dealt with by my Spanish Will dated June 7, 2002” to be added to the general disposition clause.
[2] The application judge held that the 2006 Canadian Will could not be rectified and that the revocation clause could not be deleted. Accordingly, he dismissed the two applications. Mr. Silverman and Dr. Rondel appeal that decision to this court. For the reasons that follow, I would dismiss the appeal.
FACTS
[3] Blanca Robinson (the “testator”)[1] was born in Spain in 1933. She trained as a nurse in Madrid and later moved to the UK, where she met Dr. Rondel who was training as a surgical intern at the same hospital. In the 1960s, she emigrated to Canada and became a Canadian citizen. She met and married Tom Robinson. In 1990, Tom developed Alzheimer’s disease and was institutionalized. While en route to Spain to explore treatment options for her husband, she reconnected with Dr. Rondel and, some time later, the two of them developed a relationship.
[4] The testator owned property in Spain, England and Canada. She also owned a condominium property in Naples, Florida, in joint tenancy with Dr. Rondel. In June 2002, she executed a will in Spain (the “2002 Spanish Will”) that was intended to deal with her European property: a flat in London, an apartment in Altea, Spain, and monies in two Spanish bank accounts. The European property was to go in equal shares to her two sisters with a life interest to Dr. Rondel in the London flat. The 2002 Spanish Will made it clear that the testator had executed another will in Canada for property outside of Europe.
[5] In July 2005, the testator’s husband died. Shortly after his death, the testator faxed her solicitor, Mr. Silverman, drafting instructions regarding a new will. The first fax, dated September 13, 2005, instructed Mr. Silverman to draft a “new will” dealing with the “entire residue of my estate.” The faxed letter, entitled “Re: New Will”, directed that her estate be divided into various portions among her two step-children, her brother-in-law, two close business friends and two nieces. It did not include any portion of the estate to either of the testator’s sisters. One day later, on September 14, 2005, the testator faxed revised instructions to Mr. Silverman entitled “Re: New Will – revision 14 Sep ‘05” (the “2005 Will”). These instructions, again dealing with “the entire residue of my estate”, added only one sister, Maria Pilar Hurtado who lived in Canada, as a beneficiary.
[6] Mr. Silverman drafted the new Will according to the testator’s instructions. However, he did not ask her about any previous wills, the location of all her assets or about her family and significant others. He prepared the testator’s 2005 Will with a general clause disposing of “all my property of every nature and kind and wheresoever situate” and a standard revocation clause revoking all prior wills. Mr. Silverman reviewed the 2005 Will with the testator clause by clause before she executed it in September, 2005.
[7] In July 2006, the testator learned that she had an inoperable brain tumour and a very short time to live. She called Mr. Silverman and decided to make a bequest of $1 million to Dr. Rondel. The addition of this specific bequest was the only change from the 2005 Will. The 2006 Canadian Will again contained a revocation clause and general dispositive clause. The testator reviewed and signed this Will on August 23, 2006. She passed away shortly after on October 7, 2006.
[8] Mr. Silverman began to distribute the Canadian assets in accordance with the 2006 Canadian Will. He was not aware of the 2002 Spanish Will and the fact that the testator had European assets. These only came to his attention when he was advised that the English court would not admit the 2002 Spanish Will to probate and would only do so if the 2006 Canadian Will was rectified to make clear that the Spanish Will had not been revoked. This led to the applications brought by Mr. Silverman and Dr. Rondel for interpretation and rectification of the 2006 Canadian Will, which had already been probated.
[9] Mr. Silverman’s application was supported by two affidavits – one from him and one from Elizabeth Budi, a long-time friend and neighbour of the testator and the testator’s former lawyer. In his affidavit, Mr. Silverman set out his interactions with the testator that led to the execution of the 2006 Canadian Will. As noted above, he received faxed written instructions from her on September 13, 2005 that stated she would be grateful “if you would draw up a new Will for me” and indicated that the terms would be “[o]n my death, after all expenses have been paid, the entire residue of my estate is to be divided into four equal parts…”. The next day he received further faxed written instructions from her stating, “I have revised the terms of my Will and would now like my estate to be divided into FIVE – not four – equal parts.” The new fifth part was to go to her sister Maria Pilar Hurtado. Mr. Silverman prepared the Will including revocation and general disposition clauses.
[10] Mr. Silverman’s affidavit set out the contents of his memo to file in regard to an August 22, 2006 meeting with the testator:
Blanca Robinson, along with her friend Richard Rondel attended at my office at 4:00 p.m. We chatted together for approximately ten to fifteen minutes, and then Richard Rondel went to the reception area. I shut my door and…Blanca and I talked about her Will. I went through every clause in it with her. Then she asked to see the original Will [the 2005 Will] which she read. She said she wanted to leave something to Richard Rondel. Either a share of her estate with the other beneficiaries. I suggested she could leave a monetary amount instead of a share. After much thought she said $1 million. She knew exactly what she was doing and talked about her relationship with Richard Rondel. She is of sound mind and even told me that Richard Rondel really did not want anything from her estate.
[11] Mr. Silverman also explains that he did not know about the 2002 Spanish Will that governed the testator’s European property; the testator never mentioned that Will in her meetings with him, nor that she had European assets. Mr. Silverman goes on to state his view that the testator did not direct her mind to the revocation clause and intended the 2006 Canadian Will to deal only with her Canadian assets. According to him, she did not intend to revoke the Spanish Will.
[12] Ms. Budi deposed that she and the testator were close friends for 25 years and that she had many discussions with the testator about her business and personal issues, including the disposition of her Canadian and European assets. It was Ms. Budi’s “firm belief” that the testator would not have intended to revoke her Spanish Will.
[13] Dr. Rondel filed an affidavit on his application for rectification. Dr. Rondel described his loving relationship with the testator in detail, including how he and the testator lived together for some fourteen years at the London flat, and how “we treated each other as spouses, and indeed were treated as such by our respective families.” He states that after the testator’s husband died, the testator and he planned to marry. They were unable to because the testator became ill. Dr. Rondel deposes that the testator would constantly make reference to the fact that he would be able to continue to live in the London flat after her death. He is convinced that the testator did not intend to revoke her Spanish Will, and offers his opinion that the testator’s 2006 “Canadian Will, as executed, did not accurately reflect the testator’s intentions, and was not approved by her prior to it being executed.”
[14] The respondents did not cross-examine upon any of these affidavits. Kelly Robinson, the testator’s stepdaughter, took the position that the language in the revocation clause was clear and unambiguous, that the provisions in the 2006 Canadian Will were reviewed by the testator and met with her knowledge and approval, and that the extrinsic affidavit evidence tendered by the applicants was inadmissible. The respondents maintain this position on appeal.
[15] The application judge held that if a testator’s intent could be determined simply by third party affidavits, he would have found, based primarily on Dr. Rondel’s affidavit, that the testator never intended to revoke her Spanish Will. Looking only at the affidavits, the application judge would have found that the testator wanted the Spanish and Canadian Wills to co-exist – that the 2002 Spanish Will would continue to deal with her European property.
[16] The application judge found that the 2006 Canadian Will was drafted in accordance with the testator’s instructions, that Mr. Silverman went through the Canadian Will with the testator “clause by clause” and there was no suggestion or any evidence of any drafting errors. He found that the testator read and approved the language in the 2006 Canadian Will.
[17] After a thorough review of the common law position on the rectification of wills in Canada and the United Kingdom, the application judge dismissed the applications. He held:
[45] The position being urged by the applicants would give the court the following power: Even where there is no ambiguity on the face of the will, and no drafting error of any sort, and the will has been reviewed and approved by the testator before it was executed, the court may nonetheless intervene and rectify simply on the basis of third party affidavit evidence that the testator was mistaken and did not mean what she said.
[46] This would be a significant change in the law.
[18] There is only one issue raised by this appeal: Did the application judge err by holding that the affidavit evidence tendered by the appellant and Mr. Silverman regarding the testamentary intentions of the testator was not admissible to interpret the 2006 Canadian Will?
[19] I have set out the single issue above, even though the appellant and Mr. Silverman advance a number of technical arguments. The appellant argues that the application judge could have (a) rectified the 2006 Canadian Will by using the deletion power to delete the revocation clause, or (b) exercised his interpretation function to interpret the 2006 Canadian Will to deal only with the testator’s Canadian property so that the European assets could be distributed under the 2002 Spanish Will. Mr. Silverman adds the argument that the application judge could have rectified the 2006 Canadian Will by granting the equitable remedy of rectification.
[20] These arguments are all based on the premise that the application judge had been able to find as a fact that the testator did not intend to revoke her 2002 Spanish Will. The arguments then proceed to address how the application judge should have given effect to this finding of fact. I do not need to discuss these arguments in any detail because I agree with the application judge that he had no legal route to make that finding. I therefore do not accept the initial premise.
[21] As I read his decision, the application judge did not find as a fact that the testator intended not to revoke her 2002 Spanish Will. Rather, the application judge took care to indicate that he was engaging in hypothetical reasoning assuming the affidavit evidence of the appellant and Mr. Silverman was admissible. At the outset of his consideration of this evidence, he said, “If a testator’s intent could be determined simply by third party affidavits, I would find, based primarily on Dr. Rondel’s affidavit, that the testator never intended to revoke the Spanish Will” (emphasis added). The word “if” in introducing his observations about the evidence and his use of the phrase “I would find” make obvious that he was indulging in a hypothesis. Later, he commented at para. 29 that “[I]f a mistake was made, it was made by the testator” (emphasis added). The application judge then devoted the majority of his reasons to explaining that the third party affidavit evidence of the testator’s intentions was not admissible.
[22] It seems to me that the essence of the appellant’s and Mr. Silverman’s position is that the application judge, sitting as a court of construction, should have admitted the evidence. As I conclude that the application judge was correct to reject the evidence tendered in this case, I need go no further. It is unnecessary to embark on a technical discussion of the court’s deletion power, the scope of its interpretation function and the equitable remedy of rectification.
[23] No doubt the appellant and Mr. Silverman are correct that the task of the application judge, sitting as a court of construction, was to give effect to the testator’s testamentary intentions. The fundamental purpose of the law of wills is to give effect to the testamentary intentions of the testator for the distribution of her estate. The general rule of the common law is that in construing a will, the court must determine the testator’s intention from the words used in the will, and not from direct extrinsic evidence of intent.
[24] Of course, it is always possible that the testator’s expression of her testamentary intentions may be imperfect. When a will takes effect and is being interpreted, the testator is no longer available to clarify her intentions. Extrinsic evidence is admissible to aid the construction of the will. The trend in Canadian jurisprudence is that extrinsic evidence of the testator’s circumstances and those surrounding the making of the will may be considered, even if the language of the will appears clear and unambiguous on first reading. Indeed, it may be that the existence of an ambiguity is only apparent in the light of the surrounding circumstances. This approach was noted and explicitly adopted by Bayda J.A. in Haidl v. Sacher (1979), 106 D.L.R. (3d) 360 (Sask. C.A.). He traced this approach to the Supreme Court of Canada decision in Marks v. Marks (1908), 40 S.C.R. 210. Bayda J.A.’s decision has been followed by a number of trial courts of this province, notably in Furfaro v. Furfaro, [1986] O.J. No. 280 (S.C.), leave to appeal to the C.A. refused, [1986] O.J. No. 889.
[25] The extrinsic evidence tendered by the appellant and Mr. Silverman, however, goes beyond providing evidence of the facts and circumstances surrounding the making of the testator’s 2006 Canadian Will. I refer, as examples to the following:
i. Dr. Rondel’s sworn statement that “Blanca always assured me that, even if she passed away before I did, that I would be able to remain in the UK flat”;
ii. Mr. Silverman’s hearsay evidence: “I have also discussed this issue with the deceased’s long-time friend, neighbour and lawyer, Elizabeth Budi, and she has advised me that, based on her many discussions with the deceased, she is confident that the deceased would have intended the Canadian Will to govern her Canadian assets only”, and his expression of absolute certainty that Blanca intended that her Canadian will deal only with her Canadian assets;
iii. Ms. Budi’s general assertion that “[b]ased on my long-term personal and professional relationship with Blanca, it is my firm belief that she would have intended any Canadian will that she might make to govern her Canadian assets only, and any Spanish/European will that she might make to govern all her European assets. Thus, with respect to the particular wills under consideration, I firmly believe and I am confident that Blanca would have intended the Canadian Will to govern her Canadian assets only, and the Spanish Will to govern all her European assets.”
[26] This evidence goes beyond attempting to establish the facts and circumstances surrounding the testator’s 2006 Canadian Will. Rather, it purports to directly address what she intended to include in her Will but did not include. The evidence is conclusory in nature. Bayda J.A. was careful in Haidl to emphasize that he was not speaking about such evidence. He indicated that he was discussing evidence of:
[S]uch circumstances as the character and occupation of the testator; the amount, extent and condition of his property; the number, identity, and general relationship to the testator of the immediate family and other relatives; the persons who comprised his circle of friends, and any other natural objects of his bounty.
[27] The law properly regards the direct evidence of third parties about the testator’s intentions to be inadmissible. There would be much uncertainty and estate litigation if disappointed beneficiaries like Dr. Rondel could challenge a will based on their belief that the testator had different intentions than those manifested in the will.
[28] An apt example is Reishiska v. Cody, 1967 CarswellSask 97 (C.A.). In that case, the testator made a will in which she bequeathed her land to her niece and nephew on the condition that they arrive in Canada within 15 years of her death, or else the land would be transferred absolutely to the defendant. The niece and nephew arrived in Canada, but the defendant sought to introduce evidence that the testator intended that the niece and nephew be landed immigrants or permanent residents, not just visitors. The evidence was inadmissible because it attempted to establish a contrary intention to that determined by giving the words of the will their ordinary and natural meaning. To admit the evidence would have created uncertainty where no uncertainty existed in the words of the will.
[29] An exception to the general rule excluding direct extrinsic evidence of intent in a court of construction arises where there is an “equivocation” in the will. The principle is set out in Feeney, The Canadian Law of Wills: Volume 2 Construction, 2d ed. (Toronto: Butterworths, 1982), at p. 56:
There is an equivocation only where the words of the will, either when read in the light of the whole will or, more usually, when construed in the light of the surrounding circumstances, apply equally well to two or more persons or things. In such a case, extrinsic evidence of the testator’s actual intention may be admitted and will usually resolve the equivocation.
[30] In Re Bruce Estate (1998), 24 E.T.R. (2d) 44 (Y.S.C.), the court held that the term “equivocation” is a term of art that has a special meaning in law. The court cautioned against simply equating it with either ambiguity or mere difficulty of interpretation, otherwise there would be no need for rules of interpretation and construction.
[31] The affidavits of Mr. Silverman, Ms. Budi and Dr. Rondel do furnish evidence of some of the surrounding circumstances in this case. Before drafting her Will, Mr. Silverman did not ask the testator about her previous Will, did not review her assets and their location with her, and did not canvass with her the people who she might consider including in the Will. Nor, did she offer any of this information to Mr. Silverman. Taken together, this evidence might give rise to speculation that the testator did not turn her mind to the effect the 2006 Canadian Will would have on the 2002 Spanish Will and the European assets. However, when considered in the light of all the surrounding circumstances including this evidence, there is not the slightest equivocation in the testator’s 2006 Canadian Will. The words of the 2006 Canadian Will are clear. As the application judge found, this was not a case about a typographical error, a solicitor’s misunderstanding of the testator’s instructions or a solicitor’s failure to implement the testator’s instructions. Rather, the solicitor drafted the testator’s Will in accordance with her instructions to deal with the “entire residue of my estate”, and she reviewed and approved of the language in the Will before executing it.
[32] The admissible evidence of the surrounding circumstances cannot support the inference that the testator did not intend to revoke the Spanish Will. Mr. Silverman and Dr. Rondel need to rely on the direct evidence of the testator’s intent in their affidavits, and urge this court to expand the common law to allow them to do so.
[33] It has been previously suggested that such evidence should be admitted to aid the interpretation of wills. The court’s attention was drawn to a 1982 report of the Law Reform Commission of British Columbia that recommended eliminating the exclusionary rules of evidence and admitting all evidence in aid of interpretation that meets the normal evidentiary test of relevance. The recommendation was not accepted.
[34] I prefer the different view taken by the Succession Law Reform Project reporting to the British Columbia Law Institute in a 2006 Report:
The view that has prevailed in the Succession Law Reform Project, however, is that removing all restrictions on admission of extrinsic evidence of intent would allow excessive scope for attempts to secure an interpretation contradicting the actual terms of the will. Fabrications or fantasies of the “he really meant me” or “he always said I would get the house” variety could be advanced much more easily than they can be under the present law. The Testate Succession Subcommittee and Project Committee were not as confident as the Commission had been that litigation over the meaning of wills would not increase if evidence of testamentary intent were made admissible without restriction. They were not prepared to endorse the former Commission’s recommendation to abrogate entirely the exclusionary rule regarding extrinsic evidence of intent.
[35] I agree. The evidence of disappointed beneficiaries and other third parties is simply not as probative of testators’ intentions as their own clear and unambiguous expressions in the will. Departing from the well-established general exclusionary rule would not lead to a more faithful implementation of testators’ true intentions. It would, however, lead to increased litigation. I agree with the observation of Brown J. in Re Kaptyn Estate (2010), 102 O.R. (3d) 1 (S.C.) at para. 36:
The rationale for this principle of admissibility rests in preserving the role of the written will as the primary evidence of the testator’s intention and avoiding displacing the written will with an “oral will” gleaned from evidence of the testator’s declarations of intent. [Footnotes omitted.]
[36] A testator of sound mind knows her intentions and is able to express them. The very raison d’être of a written will, formally executed, is to record the testator’s own expression of intentions. The formalities required for the proper execution of the will advance that goal by confirming that the will provides an accurate record of those intentions.
[37] Third-party evidence of a testator’s intentions gives rise to both reliability and credibility issues. Credibility is a concern because would-be beneficiaries can, without fear of contradiction by the deceased, exaggerate their relationship and fabricate the promises of bequests. Reliability is a concern because testators are not obliged to write their wills to accord with the sincere or mendacious assurances they may have given to those close to them. Until they die, testators may freely revoke or vary the directions they have given for the distribution of their estates. The evidence of third parties, who cannot directly discern the mind of the testator, is logically incapable of directly proving the testator’s intent.
[38] In my view, there is no question about the good sense of the common law rule excluding direct extrinsic evidence of a testator’s intent.
[39] The application judge was correct to find that the evidence of Mr. Silverman, Ms. Budi and Dr. Rondel directed to establish the testator’s true testamentary intentions was inadmissible. I am satisfied that it would not be wise to extend the exceptions to the common law exclusionary rule to allow the admission of the type of evidence tendered in this case. For these reasons, I would dismiss the appeal.
[40] The respondent, Kelly Anne Robinson, is entitled to her costs of the appeal. I would fix them in the amount of $10,000. I would not have them paid out of the estate but would make them payable jointly and severally by the appellant and Mr. Silverman.
“R.G. Juriansz J.A.”
“I agree M. Rosenberg J.A.”
“I agree K. Feldman J.A.”
RELEASED: July 06, 2011
[1] I use “testator” as it is the modern gender neutral term.