COURT OF APPEAL FOR ONTARIO DATE: 20210316 DOCKET: C67677
van Rensburg, Hourigan and Brown JJ.A.
BETWEEN
John Gordon Ross Responding Party (Appellant/Respondent by cross-appeal)
and
The Canada Trust Company, Executor and Trustee of the Estate of Sarah McMahon Grafton, deceased, Stewart Graeme Ross, James Grafton Ross and James Henry Ross Responding Parties (Respondents/ Appellants by cross-appeal )
Counsel: Lisa S. Toner, for the appellant/respondent by cross-appeal Mark A. Radulescu, for the respondents/appellants by cross-appeal Jeramie Gallichan, for the respondent, The Canada Trust Company, Executor and Trustee of the Estate of Sarah McMahon Grafton, deceased
Heard: November 18, 2020 by video conference
On appeal from the judgment of Justice David A. Broad of the Superior Court of Justice, dated October 10, 2019.
BROWN J.A.:
I. OVERVIEW
[1] The issue on this appeal and cross-appeal is the interpretation of the provisions in the May 14, 1968 will of the late Sarah McMahon Grafton (the “Will”) regarding the disposition of her cottage property (the “Cottage Property”), which the estate trustee, The Canada Trust Company (“Canada Trust”), has sold. Sarah’s four surviving grandchildren, the ultimate beneficiaries under her Will of the proceeds of the Cottage Property’s disposition, disagree over how the Will directs the distribution of the proceeds. Canada Trust moved before the court for an interpretation of the Will.
[2] The motion judge interpreted the Will as directing the proceeds be distributed equally amongst the four grandchildren of Sarah McMahon Grafton (“Sarah”) alive at the end of the life interests in the Cottage Property created by the Will: namely, the appellant, John Gordon Ross (“Gordon”), and his brothers, the respondents Stewart Graeme Ross (“Graeme”), James Grafton Ross (“Grafton”), and James Henry Ross (“James”).
[3] Gordon appeals, submitting that the motion judge erred in his interpretation of the Will. Gordon argues that the proper interpretation of the Will requires the net proceeds from the Cottage Property be divided into five equal shares, with distribution of two of the five shares to him. As a result, Gordon would receive 40% of the net sale proceeds, instead of the 25% which would result from the motion judge’s decision, subject to the result in other litigation between Gordon and his brothers. [1]
[4] The Respondents cross-appeal. While they agree with the motion judge’s judgment, they disagree with how he reasoned to his conclusion.
[5] For the reasons set out below, I would dismiss the appeal and the cross-appeal.
II. THE FACTS
[6] The material facts are not in dispute.
The family
[7] Sarah was an astute and successful businesswoman who first ran a chain of men’s apparel stores and then a real estate business.
[8] Sarah had two daughters: Sarah Margaret Ross (“Margaret”) and Mary Elizabeth Grafton (“Mary”).
[9] Margaret married and had 5 children: Sarah Mary Jane Ross (“Jane”); Gordon; Graeme; Grafton; and James.
[10] Mary never married and had no children.
[11] Sarah died in 1971. At the time of her death, all of Sarah’s grandchildren were alive.
[12] In 1992, Jane unexpectedly died, intestate and without a spouse or issue. As a result, Jane’s mother, Margaret, and her father were the beneficiaries of Jane’s estate. Margaret’s husband died in 1997. Under Margaret’s will, her entire estate, including any residue in Jane’s estate, passed to Gordon. However, the Respondents are challenging the validity of that will.
The Cottage Property
[13] Sarah’s Cottage Property on Lake Rosseau was the family’s central gathering place. It was a focal point of Sarah’s life and she strove to make it a family compound. All of her grandchildren spent their summer vacations at the Cottage Property.
[14] Sarah died in 1971. Under her Will, [2] her two daughters, Mary and Margaret, were given life interests in the Cottage Property.
[15] Mary died in 2002, unmarried and without issue.
[16] Margaret continued to use the Cottage Property following her sister’s death. Margaret was unable to meet her responsibility to pay the Cottage Property’s expenses. On April 19, 2013, Canada Trust, as estate trustee, obtained an order permitting the sale of the Cottage Property. The Cottage Property was sold in August 2013. Net proceeds of approximately $1.66 million were realized, from which Canada Trust paid certain Cottage Property expenses. The balance was held by Canada Trust in a Cottage Trust account.
[17] Margaret died on December 15, 2015, and her life interest in the Cottage Property ended. As of the date of Margaret’s death, approximately $1.138 million remained in the Cottage Trust for distribution.
[18] Canada Trust proposed to distribute the net sale proceeds equally to the four grandchildren of Sarah then alive. Gordon objected. In 2016, Canada Trust made interim distributions to the four surviving grandchildren of $200,000 each.
[19] At the time Canada Trust moved before the court for an interpretation of the Will and directions, roughly $340,000 remained in the Cottage Trust.
The Will
[20] Clause 3(C) of the Will deals with Sarah’s Cottage Property. It is a lengthy clause. For ease of reference, I have taken the liberty of dividing the relevant parts of clause 3(C) into separate paragraphs, followed by the Will’s general residue provision, clause 3(I)(iii):
Clause 3(C):
To hold my [Cottage Property] [ ... ] during the lifetime of my daughter, MARY ELIZABETH GRAFTON, and to permit my said daughter, MARY ELIZABETH GRAFTON, to use and enjoy the cottage [ ... ] and further providing that my said daughter, SARAH MARGARET ROSS, may use and enjoy the cottage [ ... ]
Upon the death of the survivor of my said daughters , MARY ELIZABETH GRAFTON and SARAH MARGARET ROSS, t o convey and transfer the said property to my grandchildren as joint tenants and not as tenants in common provided however failing unanimous agreement among my grandchildren to accept transfer of the property in their names as joint tenants and not as tenants in common my Trustees are directed to sell the property , but not to any of my grandchildren but to strangers and to hold the residue of the sale of the said property in trust for my said grandchildren in equal shares to be distributed to them in accordance with the provision of the residue to which my said grandchildren are entitled under Clause 3(I)(iii) of this Will.
I further empower my Trustees should they in their absolute discretion deem advisable in the light of future events or circumstances not at this time determinable to sell such real property and to invest the proceeds and the income derived therefrom is to be paid equally to my daughters, MARY ELIZABETH GRAFTON and SARAH MARGARET ROSS, during their lifetime or all to the survivor and on the death of the survivor of my said daughters to hold the residue of the sale of such property in trust for my said grandchildren in equal shares to be distributed to them in accordance with the provision of the residue to which my said grandchildren are entitled under Clause 3(i)(iii) of this my Will . [Emphasis added.]
Clause 3(I):
To divide the rest and residue of my Estate into six equal parts to be dealt with as follows:
(i) To pay or transfer three of such equal parts to my daughter, the said MARY ELIZABETH GRAFTON…
(ii) To pay two of such equal parts to my daughter, the said SARAH MARGARET ROSS …
(iii) To divide one of such equal parts among the issue of my daughter, the said SARAH MARGARET ROSS, living at my death, in equal shares per stirpes …
[21] No evidence was led on the motion from the file of the solicitor who drafted the Will.
III. THE REASONS OF THE MOTION JUDGE
[22] Before the motion judge, the Respondents argued that the Will required the net proceeds of the sale of the Cottage Property to be divided amongst those grandchildren alive at the time of the sale of the Cottage Property. Since Jane had died prior to that event, the proceeds should be divided equally amongst the four surviving grandchildren.
[23] In opposing his brothers’ position, Gordon argued that the proceeds should be distributed in accordance with clause 3(I)(iii) of the Will, which requires the residue of Sarah’s estate to be divided in a way that would include the issue of Margaret living at Sarah’s death “per stirpes”. That would include Jane and the beneficiaries of her estate, arguably Gordon. As a result, the net proceeds should be divided into five equal shares and then distributed, with two of the shares going to Gordon as the beneficiary of Margaret’s estate, which would include any interest of Jane in her grandmother’s estate.
[24] The motion judge held that the Will, interpreted with the assistance of the “armchair rule”, disclosed that Sarah intended the net sale proceeds of the Cottage Property to benefit only those grandchildren alive at the end of the life interests of Sarah’s daughters, Mary and Margaret.
[25] I propose to summarize the motion judge’s reasons in some detail as I intend to refer back to the summary when examining the grounds of appeal. In reaching his conclusion, the motion judge reasoned as follows:
(i) Clause 3(C) of the Will provided that upon the death of the survivor of Sarah’s daughters, the Trustees were to convey the Cottage Property to Sarah’s grandchildren as joint tenants and not as tenants in common. Such a conveyance would only occur if the grandchildren unanimously agreed to accept the transfer “in their names”. The motion judge reasoned that this arrangement evidenced an intention that only Sarah’s grandchildren alive at the end of the daughters’ life interests could be the recipients of the conveyance. Consequently, the estate of a grandchild who had died prior to the end of the life interests could not hold an interest in the Cottage Property as a joint tenant: at para. 29;
(ii) Clause 3(C) stipulated that if the grandchildren did not agree to accept transfer of the Cottage Property as joint tenants, the Cottage Property was to be sold to “strangers”, with the “residue of the sale of the said property” to be held in trust for “my said grandchildren” in equal shares. The “said grandchildren” were those alive at the end of the life interests: at para. 33;
(iii) Clause 3(C) also empowered the Trustees in their absolute discretion to sell the Cottage Property in circumstances other than the death of the survivor of Mary and Margaret. In that case, the Trustees were to invest the proceeds in trust for her daughters during their lifetimes and, upon the death of the survivor of them, hold the “residue of the sale of such property” on the same trust as the “residue” resulting from a sale to a “stranger” after a failure of the grandchildren to agree to take title as joint tenants, namely for “my said grandchildren.” In the motion judge’s view, the use of the word “said” in reference to “my grandchildren” must be taken to refer to an earlier mention of “my grandchildren.” The use of the words “my grandchildren” immediately preceding the use of the phrase “my said grandchildren” was in reference to the prohibition of any conveyance to “any of my grandchildren” in the event that there was no unanimous agreement “among my grandchildren” to accept a transfer in their names as joint tenants. Accordingly, this referred only to those grandchildren alive at the end of the life interests: paras. 32 and 33;
(iv) Most of the language in clause 3(C) evidenced that Sarah intended the beneficiaries of the trust of the “residue of the sale” of the Cottage Property following either a sale to a stranger or a sale by the Trustees in their discretion to be the grandchildren who survived the end of the life interests, which would not include Jane: at para. 34;
(v) However, the motion judge found that the two references in clause 3(C) to clause 3(I)(iii) created an interpretative difficulty. One reference was located at the end of that part of clause 3(C) dealing with a sale to a stranger in the event the grandchildren refused to take as joint tenants; [3] similar language appeared at the end of clause 3(C) that dealt with a sale prior to the death of the last daughter; [4]
(vi) Since clause 3(I)(iii) directed a division “among the issue” of Margaret “living at my [Sarah’s] death”, this would include Jane, who was alive when Sarah died but passed away prior to the end of the life interests: at paras. 35 and 36;
(vii) A conflict therefore arose between the directions in clauses 3(C) and 3(I)(iii) in a situation where one of Sarah’s grandchildren had died after her but before the last to die of the life tenants. Consequently, the motion judge was unable to ascertain Sarah’s intention solely from the plain meaning of the language used in the Will: at paras. 28 and 37.
[26] At this point, the motion judge applied the “armchair rule”, which calls on the court to put itself in the position of the testator when she made her Will, armed with the same knowledge that she had, based upon the evidence available: at para. 40.
[27] As formulated by the motion judge, the proper question to ask was whether at the time Sarah made her Will, she intended to permit the beneficiaries of one or more deceased grandchildren, whoever they might be, including a spouse, to take an interest in the Cottage Property or its sale proceeds: at para. 42. Based on his review of the circumstances surrounding the creation of the Will, he concluded Sarah had not: at para. 46.
[28] The motion judge directed that Canada Trust distribute the residue of the Cottage Trust amongst the four surviving grandchildren – the appellant and the Respondents – in equal shares: at para. 47.
IV. THE ISSUES
[29] The appeal and cross-appeal raise two issues:
(i) Did the motion judge err in resorting to the “armchair rule” in interpreting clauses 3(C) and 3(I)(iii) of the Will?
(ii) Did the motion judge err by failing to apply the presumption of early vesting to the grandchildren’s interests in the Cottage Property?
V. STANDARD OF REVIEW
[30] Relying on the 2004 decision of this court in Noik v. Noik, 2004 ONCA 9816, 186 O.A.C. 104 (C.A.), Gordon submits that correctness is the proper standard of review for the interpretation of the language in a will. In Noik, this court stated at para. 5:
I begin with several points of agreement between the parties. First they both say that the proper standard of review in this court is that of correctness. I agree since the central issue is the interpretation of the wording of the contested provision in the will.
[31] The Respondents submit that the errors Gordon alleges the motion judge made involve questions of mixed fact and law, subject to review for palpable and overriding error.
[32] In Alberta Giftwares Ltd. v. R., 1973 SCC 154, [1974] S.C.R. 584, the Supreme Court stated that the legal effect to be given to the language employed in a will is a question of law. However, the court did so in the context of a more general statement that “in construing a will, deed, contract, prospectus or other commercial document, the legal effect to be given to the language employed, is a question of law …”: at p. 588. In Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, [2014] 2 S.C.R. 633, the Supreme Court changed the standard of review for written contracts, adopting a deferential standard for the interpretation of the language in a written contract: at paras. 50-53.
[33] Sattva was decided a decade after Noik. Sattva’s deferential standard of review has been applied to the interpretation of a will by this court in Trezzi v. Trezzi, 2019 ONCA 978, 150 O.R. (3d) 663, at para. 15, the Court of Appeal of Manitoba in Zindler v. The Salvation Army et al., 2015 MBCA 33, 319 Man. R. (2d) 16, at para. 10, and the Court of Appeal of Alberta in Hicklin Estate v. Hicklin, 2019 ABCA 136, 85 Alta. L.R. (6th) 1, at paras. 10 and 94-95. As this court stated in Trezzi, at para. 15:
Just as the interpretation of a contract in light of its surrounding circumstances is now subject to review (absent an extricable error of law) only for palpable and overriding error, in my view, the same is true for the interpretation of a will in light of its surrounding circumstances.
[34] Accordingly, the decision of this court in Trezzi has superseded that in Noik, in light of the decision of the Supreme Court in Sattva.
VI. FIRST ISSUE: THE APPLICATION OF THE ARMCHAIR RULE
The issue stated
[35] Both Gordon and the Respondents submit that the motion judge erred in finding that the directions in clauses 3(C) and 3(I)(iii) of the Will were irreconcilable and there was a need to resort to the “armchair rule”. In their view, Sarah’s intention can be discerned from her Will’s plain language, although they advance diametrically opposed interpretations of that language.
The governing principles
[36] When interpreting a will, a court’s task can be stated simply: it is to determine the testator’s actual or subjective intention as to how she intended to dispose of her property: Trezzi, at para. 13.
[37] The basic approach to the construction of a will was described by this court in Burke (Re), 1959 ONCA 113, [1960] O.R. 26 (C.A.), at p. 30:
Each Judge must endeavour to place himself in the position of the testator at the time when the last will and testament 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 in so far 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.
[38] While a key element of Burke’s approach to will interpretation is, of course, studying the document’s contents – not only the provisions in dispute but the entire will – its approach also includes the use of what is known as the “armchair rule”. Ian Hull and Suzana Popovic-Montag, Feeney’s Canadian Law of Wills, 4th ed. (Toronto: LexisNexis, 2020) at §§10.45 and 10.46, describes the “armchair rule” as follows:
In the first instance, the court may not be convinced that the testator’s intention can be discerned from the will itself. In such a situation, since the testator must be taken to have used the language of the will in view of the surrounding circumstances known to him or her when he or she made his or her will, evidence of such circumstances is necessarily admissible, at least insofar as it corresponds to the facts and circumstances referred to in the will. It seems obvious that a court might conclude that admissible evidence of surrounding circumstances is not helpful in determining meaning.
The court puts itself in the position of the testator at the point when he or she made his or her will, and, from that vantage point, reads the will, and construes it, in the light of the surrounding facts and circumstances. This approach is commonly referred to as the “armchair rule”.
[39] Sitting in the place of the testator, the court assumes the same knowledge the testator had, at the time of making the will, in regard to the nature and extent of her assets, the makeup of her family, and her relationship to its members: Stuart v. Stuart, 2019 ONSC 4328, 49 E.T.R. (4th) 306, at para. 9; Dobson Estate v. Dobson (2000), 32 E.T.R. (2d) 62 (Ont. S.C.), at para. 8; Shamas (Re), 1967 ONCA 303, [1967] 2 O.R. 275 (C.A.), at p. 279, citing Perrin v. Morgan, [1943] A.C. 399 (U.K. H.L.), at pp. 420-21.
[40] In the past, courts usually have resorted to the “armchair rule” where the testator’s intention cannot be ascertained from the plain meaning of the will’s language: Dice v. Dice Estate, 2012 ONCA 468, 111 O.R. (3d) 407, at para. 37.
[41] More recently, courts are treating the “armchair rule” as an over-arching framework within which a judge applies the various tools for will construction at his or her disposal. As put by the Court of Appeal of Manitoba in Zindler, at para. 14:
Feeney’s [Canadian Law of Wills] concludes that “the most recent trend in Canadian cases seems to indicate that evidence of surrounding circumstances should be taken into account in all cases before a court reaches any final determination of the meaning of words” (at para. 10.54). This is true even if the words, themselves, do not appear to be ambiguous or unclear…
Analysis
[42] Both parties submit that the motion judge erred by resorting to the “armchair rule”, although they propose conflicting ways to rectify that error. I am not persuaded by their submissions.
[43] First, the interpretative methodology applied by the motion judge was sound. He tried to discern Sarah’s intention from the plain meaning of the Will’s language. Finding himself unable to do so, he then took a step back to consider the “bigger picture” of the surrounding circumstances, applying the “armchair rule”. That methodology tracked the approach described by this court in Dice, at paras. 36-38.
[44] Second, I am not persuaded by either party’s submission that the motion judge erred in perceiving an inconsistency, or irreconcilability, between clauses 3(C) and 3(I)(iii).
[45] Gordon submits that no inconsistency exists because clause 3(C) contemplates two different scenarios. In the first, the Cottage Property remains unsold until Sarah’s surviving daughter dies; in the second, the trustees sell the Cottage Property before the surviving daughter dies. In the first scenario, the testator’s use of the words “said grandchildren” refers to grandchildren alive at the end of the daughters’ life interests; in the second, it refers to any grandchildren alive at the testator’s death.
[46] For their part, the Respondents argue that Sarah’s specific direction to convey the Cottage Property to her grandchildren as joint tenants precludes the possibility that one of her grandchildren’s estates could hold an interest in the Cottage Property under either scenario advanced by Gordon.
[47] I do not agree with either submission on the plain meaning of clause 3(C)’s language. As to Gordon’s submission, I agree with the motion judge’s reasoning, summarized above in paras. 25(i)-(iv), that apart from the two references in clause 3(C) to the general residue clause 3(I)(iii), the language used in the rest of the clause shows that Sarah intended the beneficiaries of the trust of the Cottage Property’s sale proceeds to be her grandchildren alive at the end of her daughters’ life interests. The testator’s first reference to “my grandchildren” in clause 3(C) is found in the direction to transfer the Cottage Property “to my grandchildren as joint tenants”. That direction is premised on a conveyance only to the grandchildren alive at the end of the daughters’ life interests, a point the motion judge noted that Gordon conceded: at para. 30. If those grandchildren will not all take as joint tenants, then the trustees are to sell the Cottage Property to a stranger, “not to any of my grandchildren”, which means those alive to take a conveyance as joint tenants.
[48] The four subsequent references to grandchildren in clause 3(C) are to “my said grandchildren”: two are used in the scenario where the trustees must deal with the proceeds of a sale to a stranger following the death of the last daughter; the other two are used in the scenario where the trustees sell the Cottage Property before the death of the last daughter. All four of the references to “my said grandchildren” plainly refer back to the initial reference to “my grandchildren as joint tenants”, namely those alive at the end of the daughters’ life interests.
[49] As to the Respondents’ submission, it fails to deal with the Will’s references in clause 3(C) to the distribution directions contained in clause 3(I)(iii), the general residue clause. Although Sarah gave discrete directions to her trustees in clause 3(C) about how to deal with the Cottage Property, as distinct from the rest of her estate, she resorted to her Will’s general residue clause to deal with the proceeds from any sale of the Cottage Property. The general residue clause directed the distribution of part of the residue “among the issue of my daughter, the said SARAH MARGARET ROSS, living at my death”. I agree with the motion judge that incorporating the distribution directions contained in the general residue clause, clause 3(I)(iii), within the specific provisions of clause 3(C) dealing with the Cottage Property, created a patent inconsistency.
[50] Given that inconsistency, the motion judge resorted to the “armchair rule”, stating at paras. 43-46:
The affidavit evidence filed by Gordon indicated that it was the Testator's wish that the Cottage Property stay in the family and she was emphatic that her grandchildren, and not their spouses, maintain control of it.
It is evident from a review of para. 3(C) of the Will that the Testator, by directing that her grandchildren ultimately receive the Cottage Property as joint tenants and not as tenants in common, sought to ensure, to the extent possible, that it remain in her immediate family.
The Testator’s desire to keep the Cottage Property in the family would be potentially frustrated if the estate of a deceased grandchild could receive an interest in it.
There is nothing in the available evidence, and nothing to be discerned from the Will as drafted, that would support a finding that the Testator intended the estate of a deceased grandchild to receive an interest in the Cottage Property or in its proceeds of sale. To the contrary, I find from the available evidence and a review of the Will as drafted, that the Testator intended to so benefit only those grandchildren alive at the end of the life interests.
[51] I see nothing in that reasoning that would justify appellate intervention. The motion judge’s conclusion does not reveal any palpable and overriding error and is well supported by the evidence.
[52] Finally, the Respondents have advanced by way of a cross-appeal their complaint that the motion judge failed to rely solely on the plain meaning of the will. They do not cross-appeal the Judgment; they agree with it. Instead, they purport to cross-appeal from the motion judge’s reasons, contending that he erred in ruling that Sarah’s intent could not be determined having regard to the plain and ordinary meaning of the words in the Will. They seek a judgment that the Cottage Trust proceeds be divided into four equal shares “based on the Testator’s intent as determined from the plain and ordinary meaning of the words in the Will.”
[53] The Respondents’ cross-appeal reflects a misunderstanding of the nature of an appeal. As s. 6(1)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43, states, an appeal lies to this court from a “final order” of a judge of the Superior Court of Justice, save for orders from which appeals lie to the Divisional Court. The authorities are clear: an appeal lies from the order or judgment, not the reasons for them: R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at para. 4. This important distinction is explained succinctly in John Sopinka, Mark Gelowitz & W. David Rankin, Sopinka and Gelowitz on the Conduct of an Appeal, 4th ed. (Toronto: LexisNexis, 2018), at §1.11:
It is a fundamental premise in the law of appellate review that an appeal is taken against the formal judgment or order, as issued and entered in the court appealed from, and not against the reasons expressed by the court for granting the judgment or order. Although the appellate court will frequently discover in the reasons for judgment errors of law that ultimately ground the reversal of the judgment or order, it is the correctness of the judgment or order that is in issue in the appeal, and not the correctness of the reasons.
[54] Accordingly, the Respondents’ cross-appeal is misconceived and without merit. It was open to the Respondents to take issue with the reasoning of the motion judge in their factum, while making the point that the alleged error in reasoning did not taint the motion judge’s ultimate conclusion.
[55] For these reasons, I would not accede to this ground of appeal.
VII. SECOND ISSUE: THE PRESUMPTION OF EARLY VESTING
The issue stated
[56] In his factum, Gordon raises an issue not set out in his notice of appeal. He contends that the motion judge failed to apply the “presumption of early vesting” to determine when the grandchildren’s interests in the cottage vested. According to Gordon, had he done so, the motion judge should have concluded that the Cottage Property vested in the grandchildren alive at Sarah’s death because when a gift made in a will is deferred due to a life interest given to another person, vesting takes place at the death of the testator.
Analysis
[57] The law presumes that a testator intends for interests to vest at his or her death or at the earliest moment thereafter as is consonant with the terms of the will: Albert H. Oosterhoff et al., Oosterhoff on Wills, 8th ed. (Toronto: Thomson Reuters, 2016), at §17.3.2. An instance of the application of this presumption, upon which Gordon relies, is where there is a direction to pay the income of a fund to one person during his lifetime and to divide the capital among certain other named and ascertained persons on his death, even though there are no direct words of gift either of the life interest or of the capital. In those circumstances the rule is that vesting of the capital takes place in the remaindermen at the time of the testator’s death: Browne v. Moody, 1936 UKPC 119, [1936] O.R. 422 (U.K. P.C.), at p. 427.
[58] However, the presumption of early vesting is just that – a presumption. Like any presumption, it may be displaced by a finding regarding the actual intention of the testator as reflected in her will. As put in Feeney’s Canadian Law of Wills, at §§17.7 and 17.8:
The courts are inclined to hold a gift as vested rather than contingent wherever the particular words used, and the will as a whole, admit of a construction that will result, as is said, in “early vesting”. That inclination has always been said to be particularly strong where the property is land. It is accurate to refer to the tendency of courts to call gifts “vested” as a presumption to that effect, so it can be said that gifts are to be held to be vested unless there is a clear condition precedent. Accordingly, a gift, whether a devise or a legacy, that makes no reference to the time of vesting should always be held to take effect at the testator’s death, unless that date of vesting would disturb provisions already made in the will, or unless the will, as a whole, evinces a clear intention that the gift operate contingently and at a later date.
The recent trend of jurisprudence has been to strive to establish and implement the actual intentions of the will-maker. Consequently, the presumption in favour of early vesting as well as any other “rules” of construction may be applied only if the courts have some doubt about the will-maker’s intention.
[59] The reasons of the motion judge disclose that he understood Gordon was arguing that Sarah’s gift of the Cottage Property vested in all her grandchildren, including Jane, who were alive at Sarah’s death, whereas the Respondents were contending that the words used by Sarah in her Will indicated an intent to postpone the vesting of the grandchildren’s interest until the death of the last life tenant: at paras. 19 and 26. In the result, after applying the “armchair rule”, the motion judge found that Sarah did not intend the estate of any grandchild who died after her and prior to the end of the daughters’ life interests to receive an interest in the Cottage Property or the proceeds of its sale. Central to that conclusion was the motion judge’s finding that Sarah desired to keep the Cottage Property in the family, a desire that potentially would be frustrated if the estate of a deceased grandchild could receive an interest in it: at para. 45. That finding rested heavily on the language of clause 3(C) that the grandchildren receive the Cottage Property as joint tenants, not tenants in common: at para. 44. Given the motion judge’s certainty about Sarah’s intention, there was no need for the motion judge to resort to the presumption of early vesting.
[60] For these reasons, I am not persuaded by this ground of appeal.
VIII. DISPOSITION
[61] For the reasons set out above, I would dismiss the appeal and cross-appeal.
[62] In accordance with the agreement of the parties, Gordon shall pay the Respondents their costs of the appeal fixed in the amount of $15,000, inclusive of disbursements and applicable taxes.
Released: March 16, 2021 “K.M.v.R.”
“David Brown J.A.”
“I agree. K. van Rensburg J.A.”
“I agree. C.W. Hourigan J.A.”
[1] Gordon and his brothers are engaged in litigation regarding their mother’s will.
[2] Sarah made three codicils to the Will: June 21, 1968; February 24, 1970; and September 14, 1970. Their provisions do not play a role in this case.
[3] “[T]o hold the residue of the sale of the said property in trust for my said grandchildren in equal shares to be distributed to them in accordance with the provision of the residue to which my said grandchildren are entitled under Clause 3(I)(iii) of this Will.”
