COURT OF APPEAL FOR ONTARIO

CITATION: McLaughlin v. McLaughlin, 2016 ONCA 899

DATE: 20161128

DOCKET: C60802

Simmons, Pepall and Huscroft JJ.A.

BETWEEN

Daniel McLaughlin, Estate Trustee of the Estate of Elizabeth Anne McLaughlin

Applicant

(Appellant)

and

Thomas McLaughlin and Judith Corrado

Respondents

(Respondents in Appeal)

and

Michael J. Walsh

Intervenor

(Respondent in Appeal)

APPLICATION UNDER Rule 74.04 Rules of Civil Procedure, RRO 1990, Reg. 194

R. Dean Allison, for the appellant

Archie J. Rabinowitz and Douglas B. Stewart, for the intervenor

Judith Corrado, in person

Heard and released orally: November 18, 2016

On appeal from the judgment of Justice David Price of the Superior Court of Justice, dated June 30, 2015, with reasons reported at 2015 ONSC 4230, 10 E.T.R. (4th) 10, and from the costs order, dated January 20, 2016, with reasons reported at 2016 ONSC 481.

ENDORSEMENT

[1] The issues on appeal concern the validity of a will. The testatrix, Elizabeth Anne McLaughlin, died on April 23, 2012. On June 16, 2010, she executed a primary and a secondary will for which she had provided instructions to her long-time solicitor who had prepared several previous wills for her. The secondary will was intended to deal with her house. The primary will was intended to deal with the balance of her estate.

[2] Unfortunately, as the result of clerical errors, the secondary will contained some mistakes. It included a revocation clause revoking all other wills, which included the primary will; it repeated specific bequests contained in the primary will; and it did not contain a disposition of the residue of the estate such that an intestacy would be created.

[3] On July 8, 2014, Lemon J. made an order rectifying the secondary will nunc pro tunc such that the revocation clause was amended to exclude the primary will from its operation, the duplicated specific bequests were deleted and the intended residue clause was included: McLauglin Estate v. McLaughlin, 2014 ONSC 3162, 99 E.T.R. (3d) 71. Lemon J. made this order because he was satisfied that the testatrix had not read the secondary will when she signed it but that the rectified secondary will corresponded with her instructions to her solicitor, which she had entrusted him to carry out. His order was not appealed.

[4] On a subsequent application to remove an objection to the appointment of an estate trustee for the primary will, of his own initiative, the application judge embarked on an examination of the validity of the secondary will. Ultimately, he found that the secondary will was not valid based on Lemon J.’s finding that the testatrix did not read it or have knowledge of or approve of its contents.

[5] In our view, the judgment of the application judge cannot stand in this case. It was implicit in Lemon J.’s order for rectification of the secondary will, which was made nunc pro tunc, that he had determined that the secondary will is valid.

[6] The application judge’s decision undermined that of Lemon J., ignored his own and Lemon J.’s findings of the testatrix’s intentions and improperly created an intestacy in circumstances where the evidence resulted in an opposite conclusion.

[7] Indeed, the application judge’s reasoning is circular. Lemon J.’s decision to rectify the secondary will was premised on his finding that the secondary will had not been read. That finding cannot then be used to find the secondary will as rectified invalid.

[8] The appeal is allowed and the judgment of the application judge holding the secondary will invalid is set aside. In its place, we substitute an order holding the secondary will valid.

[9] The application judge also ordered that there should be a mini-trial to address proof of the primary will in solemn form. While that issue is not squarely before us, particularly in the light of our decision, the fact that no one challenged the capacity of the testatrix before Lemon J. and his finding of the absence of suspicious circumstances, we question whether there is any need for further proceedings in this matter.

[10] Leave to appeal the costs awarded to the respondents who appeared in person is granted and the costs order as it relates to them is set aside: see Fong v. Chan (1999), 1999 CanLII 2052 (ON CA), 46 O.R. (3d) 330 (C.A.).

[11] We note that the respondent, Thomas McLaughlin, was not present today and is apparently hospitalized. However, no adjournment was sought on his behalf and material was filed purporting to authorize his sister, Judith Corrado, to act in their collective best interests. All parties present, including Judith Corrado, wished to proceed today.

[12] The appellant claimed $30,490 on a full indemnity scale for costs of the appeal. We consider this amount high based on the record before us. Costs of the appeal are to the appellant on a partial indemnity scale fixed in the amount of $10,000 inclusive of disbursements and applicable taxes payable by the respondents. The intervenor did not seek costs and none are awarded.

“Janet Simmons J.A.”

“S.E. Pepall J.A.”

“Grant Huscroft J.A.”