Court of Appeal for Ontario

Date: 2025-06-16
Docket: COA-24-CV-1074

Before: Peter Lauwers, Bradley W. Miller, Jonathon George

Between

Mary Francis Pendlebury
Applicant (Respondent)

and

The Estate of James Leslie Pendlebury, Mark Christopher Pendlebury, personally and in his capacity as one of the named Estate Trustees for the Estate of James Leslie Pendlebury, Tracy Anne Baker, and Joanne Leslie Simpson
Respondents (Appellant)

Appearances:
David N. Delagran and Genevieve Madill, for the appellant
Jane E. Sirdevan and Laura Cardiff, for the respondent

Heard and released orally: 2025-06-11

On appeal from the order of Justice Bernadette Dietrich of the Superior Court of Justice, dated August 22, 2024, with reasons at 2024 ONSC 4667.

Reasons for Decision

[1] The father of the parties, James Leslie Pendlebury, made a provision in his will that granted an option to his daughter, the respondent Francine Pendlebury, to purchase from the estate his townhouse, where they had been living together.

[2] The will read, in part:
“FRANCIE shall have sixty (60) days from the date of my death to enter into an enforceable agreement to purchase the house on the terms set out above.”

[3] The will specified a purchase price of $94,000.

[4] It is uncontroversial that the provision constituted an option to purchase, and the respondent exercised the option within the 60 days. The appellant argues, however, that the provision actually required that the parties enter into an agreement of purchase and sale to effect the conveyance within the 60 day period.

[5] The application judge rejected this interpretation.

[6] The appellant argues that the application judge made errors of fact and law.

[7] The appellant argues that the “enforceable agreement” in the will is not referable to the exercise of the option, but to the subsequent APS that parties would complete in order to effect the transaction.

[8] The application judge did not err in rejecting this interpretation of the will. The will granted an option to purchase on terms. The option was exercised according to its terms. Once accepted, the option to purchase was an enforceable contract, and it created further obligations. The parties were thereafter obligated to take all necessary steps to effect the purchase and sale on the terms set out in the option: Jones v. Quinn, 2024 ONCA 315, at para. 63.

[9] The appellant further argues that the option was uncertain, as it did not establish a closing date, but left this detail to be decided by the executors, who were the appellant and respondent.

[10] We do not agree that the application judge erred in rejecting this argument. The will provided that the purchase had to be effected within “a reasonable time, such time to be determined by my Estate Trustee in the exercise of an absolute discretion”, failing which the right to purchase would be null and void. There were two estate trustees – the appellant and the respondent. The terms of the option required they work in good faith to set a reasonable time for completion. It must be kept in mind that there were realities of probate to be satisfied, and that the will contemplated that the respondent would be living in the house throughout this period. The will was not premised on there being any urgency.

[11] The appellant argues that the parties, by their subsequent conduct, indicated a different understanding of the legal relations created by the will. We do not agree that the subsequent conduct of the parties – and their respective understandings of the terms of the will – are relevant to interpreting the will. The application judge made no error in rejecting this argument.

Disposition

[12] The appeal is dismissed. As agreed between the parties, costs of the appeal in the amount of $15,000 inclusive of HST and disbursements are payable to the respondent. They are to be paid by the estate, and to be deducted in equal parts from the one-quarter shares of each of the residual beneficiaries other than the respondent. The appellant, in his capacity as co-estate trustee, shall be entitled to indemnification from the estate of his reasonable legal fees for the appeal, not to exceed $15,000 all inclusive, subject to review on passing of accounts.

“P. Lauwers J.A.”
“B.W. Miller J.A.”
“J. George J.A.”