Court of Appeal for Ontario
Before: Hourigan, Wilson and Madsen JJ.A.
Between:
Metropolitan United Church, as Estate Trustee for the Estate of Daphne Elizabeth Isard Applicant (Appellant)
and
Christopher Michael Gunn, as Estate Trustee for the Estate of Michael Gunn* and The Estate of Patricia Dorothy O’Brien Respondents (Respondent*)
Counsel:
Erin Frances Rankin Nash, for the appellant
Kimberly A. Cura, for the respondent
Heard: February 5, 2025
On appeal from the order of Justice Jennifer E. Bezaire of the Superior Court of Justice, dated December 20, 2023.
REASONS FOR DECISION
Introduction
1Daphne Isard (“Daphne”) and Patricia O’Brien (“Paddy”) were life partners. Neither had children. Paddy died on October 4, 2012, and Daphne passed away on February 10, 2018. Both Paddy and Daphne had their wills drafted by the same lawyer.
2After Paddy’s death, her will was submitted for probate and since there was no residue clause in the will, it flowed to her sole surviving relative: her brother, Michael Gunn. He died on July 2, 2023, so the residue passed to his three children. His son, Christopher Gunn, is the estate trustee for his father’s estate and, in that capacity, the respondent on this appeal.
3Daphne’s estate sought rectification of Paddy’s will so the residue of her estate would pass to Daphne’s estate. The application was dismissed, and Daphne’s estate appeals from that decision.
Background
4Paddy executed her will on February 15, 1996. The will named Daphne as her executrix and the beneficiary of Paddy’s personal and household items as well as several paintings. The will did not contain a residue clause. At the time of her death, Paddy had investments and bank accounts totalling approximately $500,000.
5Paddy drafted and executed a document she called a “codicil” to her will and executed it on April 2, 1999, having it witnessed by one person. The codicil dealt with the situation that would arise if Paddy and Daphne died at the same time or if Daphne predeceased her. A cover letter attached to the codicil described Daphne as Paddy’s “principle heir”. She sent a letter to her lawyer, on July 13, 1999, enclosing the codicil. It was not clear, based on the evidence on the application, whether the lawyer actually received the letter with the codicil.
6Daphne’s will provided that the entirety of her estate was to be left to Paddy if Paddy survived Daphne. In April 2000, Daphne signed a codicil which stated that Paddy was her “principle heir” and that if Paddy predeceased Daphne, then Daphne’s estate would be divided between four charities.
7While the application judge found there was an error in the will because it did not include a residue clause to address Paddy’s investments and bank accounts, she found that her testamentary intentions in this regard were unclear and declined to rectify it.
Analysis
8The appellant argues that the application judge made palpable and overriding errors in failing to give effect to the intentions of the testator by ordering rectification. We do not accept these submissions.
9The application judge noted there was no evidence from the solicitor who prepared the wills of Paddy and Daphne; nor was his file produced. It was unclear whether the lawyer received the letter from Paddy with her codicil.
10The application judge rightly noted that to correct an error in a will, the court must be satisfied, among other things, that the words of the will reveal the testator’s intention so strongly that no other contrary intention can be supposed: Lipson v. Lipson, 2009 ONSC 66904 (Ont. S.C.).
11The application judge determined that based on the evidence, the residue clause was omitted through an error. She found that the codicil drafted by Paddy was not properly witnessed and therefore not valid. She determined that given the lack of certainty concerning Paddy’s testamentary intentions, the lack of evidence from the drafting solicitor was “insurmountable”. She made no error in so concluding.
12The application judge considered the codicil as part of the evidence concerning Paddy’s testamentary intentions but concluded that the evidence as a whole, including the surrounding circumstances, did not satisfy Lipson. Specifically, she was not persuaded that the evidence was so strong that no other contrary intention was plausible. Instead, the application judge found that there were other possible testamentary intentions and as such, she was not persuaded that it was Paddy’s intention that Daphne receive the residue of her estate. That finding was available to her on the evidence and there is no basis on which to interfere with it. It is not the function of this court to reweigh the evidence that was before the application judge. Her factual findings are rooted in the evidence and are entitled to deference.
Disposition
13The appeal is dismissed. The appellant shall pay costs to the respondents in the agreed-upon sum of $15,000 all-inclusive.
“C.W. Hourigan J.A.”
“D.A. Wilson J.A.”
“L. Madsen J.A.”