Court File and Parties

Court of Appeal for Ontario Date: 20220915 Docket: C69900

Before: Miller, Nordheimer and Sossin JJ.A.

Between:

Danny Fletcher and Marvin VanSickle, in their capacity as Estate Trustees for the Estate of Dorothy Ethel VanSickle Applicants (Respondents)

And:

Howard VanSickle, Joan Pizzey, Allen VanSickle, Mary Ann Fletcher, Doug VanSickle, and Charles David Goold Respondents (Appellants)

Counsel: Derek Sinko, for the appellants Edwin G. Upenieks and Julia M.E. Chumak, for the respondents Joan Pizzey, Allen VanSickle and Mary Ann Fletcher Joseph Figliomeni, for the respondents Danny Fletcher and Marvn VanSickle, in their capacity as Estate Trutees for the Estate of Dorothy Ethel VanSickle

Heard: September 2, 2022

On appeal from the judgment of Justice David A. Broad of the Superior Court of Justice, dated September 7, 2021.

Reasons for Decision

[1] This appeal concerns the interpretation of a will. The testator, Dorothy VanSickle, provided one of her children with an option to purchase “the farming business carried on by me” in Brantford for $85,300. Four of the other children argued that the testator had ceased carrying on the farming business many years earlier, the option to purchase had therefore lapsed, and the farm should fall into the residue of the estate. Howard, the beneficiary of the option, disagreed.

[2] On an application for directions, the application judge agreed that “the farming business” had ceased. For the reasons set out below, we would allow the appeal.

Background

[3] The testator died aged 95, leaving 6 surviving children. Ms. VanSickle and her husband, who both worked as school custodians, owned and operated a 66.54 acre hobby farm as a secondary source of income. At one time the farming operations included livestock (cattle, pigs, rabbits, and chickens) as well crops (oats, barley, soybean, and wheat). Livestock operations ceased prior to 1992. Mr. VanSickle, the testator’s husband, died in 1994, at which point Ms. VanSickle began to rent out the farmland to their eldest son, Howard, pursuant to a series of 2-year lease agreements.

[4] Although all of the children helped with the farm growing up, the four youngest children moved away in their late teens and early twenties and had no further involvement with the farm. By the time the will was made in 1985, Howard was 40 years old and had continued working the farm. Upon the death of his father in 1994, Howard began leasing the fields from the testator for valuable consideration and continued doing so until the testator’s death. He initially tended cash crops until 1997 or 1998, and thereafter began subleasing the fields to be farmed by others. On at least two years, when the harvest was particularly good, he shared some of the extra profit with the testator.

[5] The testator continued to live at the farm until 2017 when she moved into a retirement home. She claimed farming income on her income tax return for each of her last three years of her life, the only tax returns which were in evidence.

[6] The relevant clause of the will provides:

If my son, HOWARD VANSICKLE, shall be living at the time of my death, my Trustees shall sell the farming business carried on by me at R.R. #7 Brantford, Ontario, in the Township of Onondaga, in the County of Brant, to my son, HOWARD VANSICKLE, as soon as convenient for the price of $85,300.00 or such lower price to be agreed upon by my Trustees and my son, having regard to the assessed value of the lands included hereby at the time of my death and the assistance given me by my son in the conduct of the farming business … And I desire that for the purpose of this clause the expression of my farming business shall include all assets, stock, plant, liabilities, in connection therewith on the other and it shall include the estate in fee simple of the farm…

The application judge’s reasons

[7] The application judge concluded that “the farming business carried on by [the testator]” referred to “the active farming business involving cultivation of crops and/or raising of livestock for commercial sale and profit that she and her husband had carried on for many years prior to the making of their wills.” The application judge reasoned that:

[t]o construe ‘business’ to mean the bare rental of farmland would be inconsistent with the qualifying phrase ‘carried on by me’. Renting land, with no accompanying obligations such as for maintenance or repair, and no benefits beyond fixed rent, such as to share in the profits, does not, in my view, require ‘carrying on’ and I find that the Testator did not intend the simple rental of land to come within the ambit of the phrase ‘farming business carried on by me.’

Analysis

[8] As this court has recently observed, the standard of review of an application judge’s interpretation of a will is the same as of a contract: Trezzi v. Trezzi, 2019 ONCA 978, 150 O.R. (3d) 663, at para 15. The findings of an application judge in interpreting the will in light of all the surrounding circumstances to determine the subjective intentions of the testator that it conveys, are findings of mixed fact and law entitled to appellate deference, absent an extricable error of law or palpable and overriding error.

[9] We are of the view that the application judge made an extricable error of law in failing to apply the presumption set out in s. 22 of the Succession Law Reform Act, R.S.O. 1990, c. S.26, that “[e]xcept when a contrary intention appears by the will, a will speaks and takes effect as if it had been made immediately before the death of the testator with respect to … the property of the testator”.

[10] The starting point for the interpretation of the will, according to s. 22, is to ask whether the testator was, at the time of her death, carrying on a farm business at R.R. #7, Brantford. As at that date, she still owned the specific farmland at that location and did not leave it unproductive, but rather leased it out to be farmed on a commercial basis, received income from the lease (and on occasion a share in the profits from the crops), and declared that income on her income taxes as farm income. On each tax return in evidence, she indicated that it would not be the final year of farming.

[11] On any reading of these facts, the testator was carrying on a farm business at R.R. #7, Brantford at the time of her death. The next question is whether there is anything in the will to displace the presumption that the will speaks at the time of death, and instead to support the proposition that what the testator really intended was that the option to Howard only be exercisable if the farm business that she was carrying on was one in which she had a direct role – either tending the fields herself or directly managing the labour of others.

[12] Had the application judge engaged with the presumption, he would not have been able to find that the phrase “the farming business carried on by me” was sufficient to defeat it. There is nothing in the phrase “the farming business carried on by me” that points unambiguously to the business carried on in 1985 over the business carried on in 2019. Neither is there anything in evidence about the surrounding circumstances that would suggest that the testator’s intention was to provide Howard with an option to purchase the family farm so that he could continue farming it, but only if she was still involved in the day-to-day operations. Indeed, it is noteworthy on this point that the will contained a further clause that defined the term “farming business” as including “all assets, stock, plant, liabilities, in connection there with on the other (sic) and it shall include the estate in fee simple of the farm.”

[13] One might well wonder whether the testator intended to benefit Howard quite as much as she did. The will provided a mechanism for adjusting the option price downwards if the value of the land decreased. But there was no mechanism to adjust the purchase price to account for an appreciation in land value. It may well be that it did not occur to the testator that the economy had vastly changed, resulting in a much bigger gap between her provision for Howard and the rest of her children than would have been the case in 1985. While we do not know that, we do know that she intended to benefit Howard differently from her other children because of his lifelong commitment to the operation of the farm. Further, despite the passage of 34 years, the testator never chose to amend her will. The task of this court is simply to determine whether the option to purchase is valid and was validly exercised. It is and it was.

Disposition

[14] The appeal is allowed, the judgment below is set aside, and the appellant Howard VanSickle is entitled to a declaration that the will provided him with the option of purchasing the farming business for $85,300, and that he exercised that option according to its terms.

[15] The appellant is entitled to costs of the appeal in the amount of $15,000, as agreed between the parties. If the parties are unable to agree on a disposition of costs for the hearing of the application below, they may provide written submissions to this court not exceeding 2 pages in length (not including bills of costs) within 14 days of these reasons.

“B.W. Miller J.A.” “I.V.B. Nordheimer J.A.” “L. Sossin J.A.”