Court of Appeal for Ontario

Citation: Woolley v. Desmond, 2007 ONCA 639

Date: 20070918

Docket: C45949

Before: FELDMAN, SIMMONS and MacFARLAND JJ.A.

Between:

GEORGE WOOLLEY

Applicant (Appellant)

and

JEFFREY DESMOND

Respondent (Respondent in Appeal)

Counsel:

Michael R. White for the appellant

L. Scott Smith for the respondent

Heard and released orally: September 7, 2007

On appeal from the order of Justice C. A. Tucker of the Superior Court of Justice dated August 10, 2006.

ENDORSEMENT

[1] In our view, the clause in the Will that refers to the house is ambiguous and a court is entitled to consider extrinsic evidence to assist in interpreting the true intentions of the testatrix.

[2] The marriage contract of the testatrix and Mr. Woolley provided that the house, which she brought into the marriage, was to be left for him to live in after her death if he wished, but that he would make no claim to the property against her estate.

[3] The testatrix left the house to her trustees on trust. This is consistent with her obligation in the marriage contract that her husband be entitled to live in the house after her death. However, subject to that, the house falls into residue and goes to her son in accordance with the result reached by the trial judge.

[4] The appeal is therefore dismissed.

[5] The trial judge declined to order costs out of the estate. That disposition was within her discretion and we would not interfere with her decision. The appeal on costs is also dismissed.

[6] Although on an appeal in estate matters, the normal rule as to costs should generally apply, in this case, although the appellant lost on appeal, in all the circumstances including the fact that costs below were not paid out of the estate, each party will bear its own cost of this appeal as well.

Signed: "K. Feldman J.A." "Janet Simmons J.A." "J. MacFarland J.A."