ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 12-53820
DATE: 2012/06/01
IN THE MATTER OF THE ESTATE OF RHÉAL BARBEAU Also known as Rhéal Lucien Barbeau Application pursuant to article 60(1) Trustee Act , R.S.O. 1990, T.23 and Rules 14.05(3),(a), (b), (d), 16(4) and 75 of the Rules of Civil Procedure
Matthew J. Ebbs, for the Estate Trustee
John Raymond, as one of the potential beneficiaries
HEARD: April 27, 2012
REASONS FOR DECISION
R. SMITH J.
Factual Background
[ 1 ] The Estate Trustee asks the Court to interpret two clauses in the late Rhéal Barbeau’s will to determine whether his common‑law spouse survived him “for a period of thirty days”.
[ 2 ] Mr. Barbeau died on September 17, 2011, at 5:40 a.m. leaving the residue of his estate to his common‑law spouse Germaine Raymond, provided she survive him for a period of thirty days. Ms. Raymond died on October 17, 2011, at 4:45 p.m.
[ 3 ] The following clauses in Mr. Barbeau’s will must be interpreted.
(c) Provided she survives me for a period of thirty days , to pay or transfer the residue of my estate to my common-law spouse, GERMAINE RAYMOND, for her own use absolutely.
(d) Should my said common-law spouse predecease me or survive me but die within a period of thirty days after my death , I direct my Trustee to transfer the residue of my estate to the daughter of my common-law spouse, MARY CURRIE, for her own use absolutely. [emphasis added]
Analysis
[ 4 ] Both the Estate Trustee and Mr. Raymond did not want me to order a trial of this issue, which I had suggested. Both the Estate Trustee in her personal capacity and the respondent beneficiaries of the estate of Germaine Raymond, namely her four other children, did not wish to incur the legal expenses involved in a trial as the estate value is quite modest.
[ 5 ] On consent of the parties, Mr. Raymond filed a written legal opinion from Mr. Morton, which I regard as written submissions, and the Estate Trustee, Mary Currie, declined to make any submissions. All parties requested that I interpret the meaning of clauses 3(c) and (d) of Mr. Barbeau’s will relying on: the will; the factual background in the application record; the factum filed by the estate trustee; the written opinion of Mr. Morton; and the oral submissions of Mr. Raymond.
[ 6 ] There are two possible interpretations for the phrase “survives me for a period of thirty days”:
(a) Firstly that the thirty days are calculated as thirty 24-hour periods commencing at 5:40 a.m. on September 17, 2011, immediately after the testator’s death.
If this interpretation is followed, then Ms. Raymond would have survived by thirty days, and Mr. Barbeau’s estate would be distributed equally among her five children rather than only one of her children, namely Mary Currie.
(b) (i) The second interpretation would start counting the thirty day period in accordance with the Rules of Civil Procedure , namely excluding the date of death and commencing the thirty day period on the day immediately following Mr. Barbeau’s death.
(ii) There is a further issue to be decided if the second interpretation is followed namely: Did Ms. Raymond survive for a period of thirty (30) days as she was alive for part but not all of the thirtieth day?
(iii) If this second interpretation is followed, Ms. Raymond would have survived for a period of thirty full days if only part of the thirtieth day is required but not if thirty full days are required. If thirty full days are required, the residue of his estate will be paid to Mary Currie pursuant to Mr. Barbeau’s will.
[ 7 ] The purpose of the survivorship clauses in paragraphs 3(c) and 3(d) of Rhéal Barbeau’s will is to avoid the application of s. 55 of the Succession Law Reform Act and to avoid the imposition of two sets of administration taxes and two sets of estate administration costs in a situation when the testator and the beneficiary die within a short period of each other.
[ 8 ] Section 55 of the Succession Law Reform Act , R.S.O. c. S.26, states that if two persons die at the same time, they will both be deemed to have predeceased the other. The section reads as follows:
55.(1) Where two or more persons die at the same time or in circumstances rendering it uncertain which of them survived the other or others, the property of each person, or any property of which he or she is competent to dispose, shall be disposed of as if he or she had survived the other or others.
[ 9 ] I agree with the submission of Mr. John Raymond that the choice of thirty days is a standard period of time used by estate lawyers to avoid the effects of s. 55 of the Succession Law Reform Act , and to avoid paying probate fees twice.
[ 10 ] I infer and find that the period of thirty days was an arbitrary number of days, probably recommended by his solicitor, and that Mr. Barbeau intended to avoid the effects of s. 55(1) and to avoid the additional costs if they both died at the same time or within a short period of each other.
[ 11 ] Black’s Law Dictionary by Joseph R. Nolan and Jacqueline M. Nolan‑Haley, 6 th ed (West Publishing Co., 1990) at p. 396 defines a “day” in a number of ways as set out below:
A period of time consisting of twenty‑four hours and including the solar day and the night.
The period of time during which the earth makes one revolution on its axis.
The space of time which elapses between two successive midnights.
The whole or any part of period of 24 hours from midnight to midnight
That portion of time during which the sun is above the horizon, and, in addition, that part of the morning and evening during which there is sufficient light for the features of a man to be reasonably discerned.
An artificial period of time, computed from one fixed point to another twenty‑four hours later, without any reference to the prevalence of light or darkness.
The period of time, within the limits of a natural day, set apart either by law or by common usage for the transaction of particular business or the performance of labor; as in banking, in laws regulating the hours of labor, in contracts for so many “days work,” and the like, the word “day” may signify six, eight, ten, or any number of hours.
In practice and pleading, a particular time assigned or given for the appearance in court, the return of process, etc.
[ 12 ] Rule 3.01(1)(a) of the Rules of Civil Procedure , R.R.O. 1990, Reg. 174 as amended, (“ Rules ”) states as follows with reference to computation of days:
3.01 (1) […]
(a) where there is a reference to a number of days between two events, they shall be counted by excluding the day on which the first event happens and including the day on which the second event happens, even if they are described as clear days or the words “at least” are used;
[ 13 ] The most important factor in interpreting a will is to determine the intention of the testator. In Re Burke , 1959 113 (ON CA) , [1960] O.R. 26 p, [1959] O.J. No. 706, J.A. Laidlaw of the Ontario Court of Appeal stated as follows:
Each Judge must endeavour to place himself in the position of the testator at the time when the will was made. He should concentrate his thoughts on the circumstances when 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.
[ 14 ] This decision has also been followed in the Finucci (Attorney for) v. Finucci Estate , (2002), 2002 31109 (ON SCDC) , 167 O.A.C. 218 (Div. Ct) in Marion v. Marion Estate , (2009) 49 E.T.R. (3d) 128 .
[ 15 ] If Mr. Barbeau had concentrated his thoughts on the circumstances which currently existed at the time he made his will, namely that his common‑law spouse Ms. Raymond would not survive him for thirty full days, excluding the date of his death, I find that the testator would have intended the beneficiary to be Mary Currie as he named her as the alternate beneficiary in paragraph 3(d) of his will. The second interpretation would therefore be more consistent with Mr. Barbeau’s intention than the first possible interpretation.
[ 16 ] Day Estate (Re) (1982), 13 E.T.R. 95 (referred to me by our law clerk who researched this issue) is a decision of the British Columbia Supreme Court where the term “within a period of thirty days” was considered. In Day, the testator died on April 7, 1982 and was survived by his widow and three children. His widow died on May 7, 1982. Gansner J. referred to sections of the Criminal Code as well as the Interpretation Act of the Province of British Columbia to interpret the meaning of “within a period of thirty (30) days”.
[ 17 ] In Day Estate (Re), supra , Gansner J. also referred to the case of Neon Products of Western Canada Ltd. v. Bancroft , (1935) SO B.C.R. 81, which made reference to the principle that fractions of a day are not recognized in law. He interpreted a period of thirty days by excluding the date of the testator’s death and including the last day. He concluded that, as the widow was alive for some length of time on May 7, the thirtieth day, that she survived him for a period of thirty days, as he held that no notice was “to be taken of part of a day”.
[ 18 ] However, if the interpretation followed in Day Estate (Re), supra , is applied to the facts before me by excluding the day of the testator’s death, namely September 17, and including any part of October 17, it leads to contradictory results between paragraphs 3(c) and 3(d) of his will.
[ 19 ] The calculation of the thirty day period would start to run with the first day being September 18, 2011, the day following his death. Ms. Raymond died at 4:45 p.m. on October 17, which is partway through the thirtieth day. If paragraph 3(c) is interpreted as in Day Estate (Re), supra , this leads to the conclusion that Ms. Raymond would have survived for a period of thirty days, as she was alive for part of the thirtieth day and the residue would go to her five children.
[ 20 ] However, when the same interpretation is applied to paragraph 3(d) of his will, a contrary result is achieved as the wording of clause 3(d) states that “in the event my common law spouse dies within a period of thirty days after my death, the residue is transferred to Mary Currie”. Using the interpretation followed in Day Estate (Re), supra , Ms. Raymond would have also died within a period of thirty days following his death, and, therefore, the beneficiary would be Mary Currie.
[ 21 ] These results cannot be consistent with the testator’s intention as Ms. Raymond would both have survived for thirty days following his death and died within thirty days of his death.
[ 22 ] I find the testator did not intend that the paragraphs 3(c) and 3(d) in his will would to lead to inconsistent results. I will interpret clauses 3(c) and 3(d) in Mr. Barbeau’s will in a manner consistent with his intention, by following the approach to calculating time between events as set out in the Rules of Civil Procedure and in a manner that does not lead to an inconsistency between paragraph 3(c) and 3(d).
[ 23 ] As a result, I find that the date of the first event namely, the date of Mr. Barbeau’s death, should be excluded from the calculation of the thirty day period in accordance with the Rules and Day Estate (Re), supra . I further find that clause 3(c) of the will should be interpreted consistent with the testator’s intention and to avoid an inconsistent result with clause 3(d) of the will. I, therefore, infer that Mr. Barbeau intended clause 3(c) to require Ms. Raymond to survive him for a period of thirty full days, namely that she would have to survive until some point in time on the thirty‑first day in order to be entitled to receive the residue of the estate.
[ 24 ] The above interpretation removes the inconsistency between paragraph 3(c) and 3(d) of the will and produces a result that is consistent with Mr. Barbeau’s intention to have the residue given to Mary Currie, if Ms. Raymond did not survive him for a thirty day period. This interpretation is also consistent with the way time is calculated in the Rules of Civil Procedure with regards to within a period of thirty days.
Disposition
[ 25 ] In the circumstances before me, I find that Ms. Raymond died at 4:45 p.m. on the thirtieth day and therefore did not survive Mr. Barbeau for a period of thirty full days under s. 3(c) of his will. She also died within thirty full days after his death as set out in paragraph 3(d). In these circumstances, I find the intention of the testator was that the residue of the estate would be transferred to Mary Currie for her own use absolutely.
[ 26 ] On consent, the estate trustee shall be paid costs from the estate of $3,000, and John Raymond shall be paid his costs of $565 for obtaining the opinion letter from Mr. Morton and $115 of court costs for a total of $680 payable from the estate.
Mr. Justice Robert J. Smith
Date: June 1, 2012
COURT FILE NO.: 12-53820
DATE: 2012/06/01
ONTARIO SUPERIOR COURT OF JUSTICE RE: Estate of Rhéal Barbeau, also known as Rhéal Lucien Barbeau BEFORE: R. Smith J. COUNSEL: Matthew J. Ebbs, for the Estate Trustee John Raymond, as one of the potential beneficiaries REASONS FOR DECISION R. Smith J.
Released: June 1, 2012