Court File and Parties
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
CHADWICK, HOWDEN & CAPUTO, JJ.
B E T W E E N: )
VERNA FINUCCI in her capacity as ) Julian Heller and Dace Anna Kuze, Succeeding Estate Trustee with a Will ) counsel for the appellants In the Estate of Raffaele Finucci, ) deceased and VERNA FINUCCI ) personally )
Appellants )
GIUSEPPINA DITOMMASO and ) David M. Smith, counsel for the LUCIANO DITOMMASO in their ) respondents capacities as Attorneys under a ) Continuing Power of Attorney for ) Property of Erminia Finucci )
Respondents ) HEARD: November 25, 2002
1The appellants seek an order setting aside a judgment declaring that Erminia Finucci is the sole beneficiary of the estate of Raffaele Finucci, deceased and that the estate has vested absolutely in her and ordering that costs of both parties be paid out of the estate on a party and party basis.
2The appellants request that judgment be granted as follows:
(a) the Estate of Raffaele Finucci, deceased, vests in his nieces and nephews, Verna Finucci, Maria Luisa Finucci, and Giuseppe Finucci, and that the deceased's wife, Erminia Finucci, holds a life interest in the said estate; and,
(b) costs of this application to be paid out of the estate on a solicitor-client basis.
FACTS
3Raffaele Finucci ("Raffaele") died August 23, 1997, leaving his wife, Erminia Finucci ("Erminia"), his brother, Mario Finucci ("Mario"), and his brother's children, Verna Finucci, referred to as "Virna Finucci" in the Will ("Verna"), Maria Lisa Finucci, referred to as "Maria Luisa Finucci" in the Will ("Lisa") and, Mario Joseph Finucci, referred to as "Giuseppe Finucci" in the Will, also known as "Joe Finucci" ("Joe"), his survivors.
4Raffaele married Erminia November 13, 1965.
5Raffaele and Erminia never had any children of their own.
6Mario, Verna, Lisa, Joe and their mother always had a very close relationship with Raffaele and Erminia, and Raffaele regarded Mario's children like his own children.
7In or about September, 1975, Erminia suffered a nervous breakdown from which she never recovered her mental health.
8Shortly after Erminia's breakdown, Raffaele gave instructions to his travel agent, Ontario Sarracini to draft his will.
9Ontario Sarracini drafted Raffaele's will using a stationer's form filled in by typewriting.
10The words in the Will which dispose of Raffaele's property are ambiguous.
11The relevant wording of the will is as follows:
(a) in pre-printed words, the Will states:
I give, devise and bequeath all my Real and personal Estate of which I may die possessed in the manner following, that is to say:
(b) followed by the typed-in words:
My house, located at 20 Arrowsmith Ave., in Toronto, Ontario and all its contents. –
My property in Italy. –
All property deposited in any bank or banks, wheresoever situated, whether in possession or expectancy of which I am seized, possessed or entitled to, unto my wife, ERMINIA MARCHETTI married FINUCCI, for her use absolutely. –
All of the rest and residue of my estate, whether it be real or personal and wheresoever situated, whether in possession or expectancy of which I am seized, possessed or entitled to, unto my wife ERMINIA MARCHETTI married FINUCCI, for her use absolutely. –
In the event that my said wife ERMINIA MARCHETTI married FINUCCI should predecease me, or if we should die together, then my estate, both real and personal shall be equally divided amongst my brother MARIO SANTE FINUCCI'S three children: GIUSEPPE FINUCCI, VERNA FINUCCI and MARIA LUISA FINUCCI. However, should my wife be my survivor, at the time of her death, my half of the estate shall go to my brother's children, as stated.
12From approximately 1989, Raffaele went to live in a nursing home and came under the guardianship of the Ontario Public Guardian and Trustee, who divided all the assets of Raffaele and Erminia and credited each account with one-half the value of the assets. The remaining one-half allocated to Raffaele and administered by the Ontario Public Guardian and Trustee is the subject-matter of the Will in question.
13Since 1989, Raffaele and Erminia had not cohabited and only minimum support had been paid by Raffaele to Erminia since that date.
ISSUES
14The parties agreed that there is ambiguity with respect to the disposition of the Raffaele's property and asked the court to interpret the will.
ISSUE #1
15The appellants contend that the will is to be interpreted as creating a life estate to Erminia and on her death, Raffaele's brother's (Mario's) children, Verna, Luisa and Joe, inherit the estate outright, keeping in mind that the estate is the remaining one-half, after the division of assets between Raffaele and Erminia by the Ontario Public Guardian and Trustee.
16The respondents contend that the will is to be interpreted that Erminia takes the entire estate outright with no gift over.
ISSUE #2
17What is the appropriate level of a costs award given the necessity for the interpretation of the will of Raffaele Finucci?
ISSUE #1 – INTERPRETATION OF AMBIGUITY IN A WILL
LAW
18The construction by the Court of other documents and decisions in other cases respecting the intention of other testators affords no assistance whatsoever to the Court in forming an opinion as to the intention of the testator in the particular case now under consideration. Other cases are helpful only insofar as they set forth or explain any applicable rule of construction or principle of law. Each judge must endeavour to place himself in the position of the testator at the time when the will was made. He should concentrate his thoughts on the circumstances which then existed and which might reasonably be expected to influence the testator in the disposition of his property. He must give due weight to those circumstances insofar as they bear on the intention of the testator. He should then study the whole contents of the will and, after full consideration of all the provisions and language used therein, try to find what intention was in the mind of the testator. When an opinion has been formed as to that intention, the Court should strive to give effect to it and should do so unless there is some rule or principle of law that prohibits it from doing so.
Re Burke, 1959 113 (ON CA), [1960] O.R. 26 (Ont. C.A.)
19It is the duty of the Court to discover the meaning of the words used by the testator, and from them and from such surrounding circumstances as it is permissible in the particular case to take into account to ascertain his intention. For this purpose, it is important to have regard, not only to the whole of the clause which is in question, but to the will as a whole which forms the context to the clause.
20Unless this is done, there is grave danger that the canons of construction will be applied without due regard to the testator's intention, tending thereby to ascertain his wishes by rules which, in the particular case, may produce consequences contrary to that intention.
Re Shamas, [1967] 2 O.R. (Ont. C.A.)
21Where two clauses or gifts are irreconcilable, so that they cannot possibly stand together, the clause or gift which is posterior in local position shall prevail, the subsequent words being considered to denote a subsequent intention.
Re Massoud (1959), 1958 386 (ON SC), 16 D.L.R. (2nd) 134 (Ont. H.C.)
22Where two clauses in a will are contradictory and inconsistent, the latter prima facie prevails. The will should be read as a whole and effect should be given so far as possible to all parts thereof.
Re Swayzie (1912), 21 O.W.R. 95 (Ont. H.C.)
23Where the meaning of the will is ambiguous and it appears according to one construction to offend against some other rule of law and to be, in part, invalid, but is fairly capable of another construction which avoids that objection, the latter is presumed to be the intention of the testator.
Re Burke, supra
Re Mayhew Estate, [1989] P.E.I.J. No. 124 Action No. 195
24The respondents rely on the principle set out in Re Walker (1925), 56 O.L.R. 517. In that case, the will read:
I give and devise unto my said wife all my real and personal property [with certain exceptions which he disposed of specifically] and also should any portion of my estate still remain in the hands of my said wife at the time of my decease undisposed of by her such remainder shall be divided as follows.
25Middleton, J.A., delivering the majority judgment of the Court of Appeal, said at p. 521:
From the earliest times the attempt has been made to accomplish the impossible, to give and yet to withhold, to confer an absolute estate upon the donee, and yet in certain events to resume ownership and to control the destiny of the thing given. By conveyance this is impossible.
and, at p. 522:
When a testator gives property to one, intending him to have all the rights incident to ownership, and adds to this a gift over of that which remains in specie at his death or at the death of that person, he is endeavouring to do that which is impossible. His intention is plain but it cannot be given effect to. The Court has then to endeavour to give such effect to the wishes of the testator as is legally possible, by ascertaining which part of the testamentary intention predominates and by giving effect to it, rejecting the subordinate intention as being repugnant to the dominant intention.
ANALYSIS
26The will was drawn by a layman, a travel agent in the Italian community. The will is a "form" will with added clauses as set out above.
27The trial judge found in reading the will using ordinary language and considering the circumstances of the testator at the time he made the will that the testator may have intended to give his wife a life interest in his estate, being one-half of their joint assets, and that on her death, that estate would pass to his side of the family in the persons of his brother's three children named in the will.
28The trial judge further made the following findings:
In adopting this view I am following the approach taken by Laidlaw J.A. in both Re Hornell and in Re Burke, 1959 162 (ON SC), [1959] O.R. 351 (HCJ) and 1959 113 (ON CA), [1960] O.R. 26 (OCA). In the latter case the will read:
(a) To pay and transfer the same [the residue] to my wife for her own use absolutely, if she is living at the time of my death
(b) If my said wife has predeceased me, and in any event upon her decease, in respect to any balance of my estate which may remain, I give the same etc.
McRuer C.J.H.C. found that the principle in Re Walker applied and that the wife took outright. On the appeal Laidlaw J.A. in delivering the majority judgment adopted the "arm chair" approach. He considered the surrounding circumstances. At p. 31 he proceeded to determine the intention of the testator:
Clause (a) must be read together with cl. (b) and due consideration given to the whole provision in respect of the residue of the estate to ascertain the intention of the testator. When both clauses are read together and given due consideration I am satisfied from them that the testator intended to give the nieces, great nieces and nephews named by him in cl. (b) the 'balance' of his estate in the hands of his trustees 'in any event' upon the death of his wife, that is whether she died before he died or after he died.
Unfortunately for the respondents the court in Burke was dealing only with the question of the effect of the will on those assets still in the trustees' hands which had not yet passed to the widow at the time of her death. On that basis Laidlaw J.A. found that the principle of Re Walker did not apply because the testator was not attempting impossibility. LeBel J.A. in dissent noted at p. 37:
Para. 8(b) of this will does not clearly express an intention to divest the testator's widow of the earlier absolute gift in her favour, in whole or in part. The most that can be said reading cll. (a) and (b) together, in my opinion, is that that may have been his intention. That is not sufficient to enable the respondents to succeed upon the authorities.
29The trial judge then stated that reading the three paragraphs of the will together, there was a very clear intention expressed to give his wife an absolute gift of and his property and applied the principle in Re Walker.
30In Re Hornell, in dissent and for the majority in Re Burke, Laidlaw J.A. approached interpretation by ascertaining the intention of the testator from the language used in the will and from such surrounding circumstances as might be properly considered. Having done so, he then inquired whether there was any rule of law which prevented the intention being given effect. He applied the rule in Re Walker, but found the dominant intention to be the gift over and the gift to the wife to be subordinate to it.
31In Re Burke, in his dissent, LeBel J.A., in applying the principles in Re Walker, at p. 38, stated"The words 'and in any event upon her decease' in cl. (b) following immediately upon 'if my said wife has predeceased me' can only mean 'and if she survives me'. They are not the equivalent in my view of the words meaning 'notwithstanding the provision for my wife contained in cl. (a)".
32I infer that LeBel J.A. would not have dissented, had the word notwithstanding been included.
33In this case, the concluding words are "However, should my wife be my survivor, at the time of her death, my one-half of the estate shall go to my brother's children, as stated".
34The word "however" has the equivalent effect of "notwithstanding" in my view.
35In the case of Re Walker, the gift over was of 'that which remains in specie at his death'.
36In the cases following Re Walker, the gifts over speak of the residue or remains or remainder of the estates.
37The will leaves a definite gift of one-half of the estate, i.e., the testator's one-half, as the gift over.
38The trial judge refused to follow Re Burke because the court was only dealing with those assets still in the trustee's hands.
39In my view, the fact that the assets are given to the beneficiary in the form of a trust and not directly is not relevant to the intention of the testator. In either case, the testator intended to gift the beneficiary.
40In applying Re Burke in that manner, the trial judge wrongly applied the legal principle of the case.
41In looking at the language used in the will and the surrounding circumstances and in applying the principles of Re Burke in the manner described, I am of the view that the trial judge was clearly wrong in holding that there was no clear intention that the testator intended to limit the absolute gift to his wife and finding her the sole beneficiary of the estate.
COSTS
42The trial judge awarded costs to both parties on a party and party basis payable out of the estate without giving reasons.
43The value of the estate at the time of death was $160,000 and at the time of the trial $75,000. It would be reasonable to infer that the trial judge did not wish to dissipate more funds from the estate than reasonably necessary. I agree with the trial judge's award of costs.
44Order to go setting aside para. 1 of the judgment of Madam Justice Haley, dated April 24, 2001, and judgment granted as follows:
(a) the Estate of Raffaele Finucci, deceased, vests in his nieces and nephew, Verna Finucci, Maria Luisa Finucci, and Giuseppe Finucci, and that the deceased's wife, Erminia Finucci, holds a life interest in the said estate.
45Costs of this appeal to be awarded to both parties on a party and party basis to be paid out of the estate for the reasons set out above.
CHADWICK, J.
HOWDEN, J.
CAPUTO, J.
DATED: 20021129
COURT FILE NO.: 160/02
DATE: 20021129
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
CHADWICK, HOWDEN & CAPUTO JJ.
B E T W E E N:
VERNA FINUCCI in her capacity as Succeeding Estate Trustee with a Will in the Estate of Raffaele Finucci, deceased and VERNA FINUCCI personally
Appellants
- and -
GIUSEPPINA DITOMMASO and LUCIANO DITOMMASO in their capacities As Attorneys under a Continuing Power of Attorney for Property of Erminia Finucci
Respondents
J U D G M E N T
CAPUTO J.
RELEASED: 20021129