ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 4843/12
DATE: 2012/10/09

B E T W E E N:

Virginia Laurel Daradick

Archie J. Rabinowitz, for the Applicant

Applicant

• and –

David Brock McKeand, Estate Trustee of the Estate of Ruth Caroline McKeand, Paul McKeand, Peter McKeand and Gordon McKeand

Robert F. Morningstar, for the Respondents

Respondents

HEARD: September 21, 2012

The Honourable Mr. Justice B.H. Matheson

ENDORSEMENT

[ 1 ] This is an application brought by Virginia Laurel Daradick to rectify the last will and testament of Ruth Caroline McKeand dated June 22, 2010.

[ 2 ] The respondents, who did not file any material, other than a factum and a Book of Authorities, consented to any solicitor/client privilege, filing of the solicitor’s affidavit regarding his dealings with Ruth Caroline McKeand (“the Testator”).

[ 3 ] The Testator died on December 11, 2010, at the age of 92.

[ 4 ] She was predeceased by her husband James Cecil Lauren McKeand, who died in 1997.

[ 5 ] There were five children of the marriage: David McKeand, Paul McKeand, Peter McKeand, James McKeand and Virginia Laurel Daradick.

[ 6 ] James McKeand died in 2005.

[ 7 ] James Cecil Lauren McKeand executed a will dated the 15 th day of January 1992, which deals with the property known as 5 Birchmount Avenue in the City of Welland. It reads at paragraph 5(b) as follows:

To transfer and delivery all my right, title and interest in my matrimonial residence, being real estate municipally known as 5 Birchmount Avenue, in the City of Welland, to my daughter, Virginia Laurel Daradick for her sole and exclusive use, ownership and benefit.

[ 8 ] This bequest was conditional on his wife, Ruth Caroline McKeand, predeceasing him.

[ 9 ] This bequest was confirmed in a codicil dated the 18 th day of April 1997.

[ 10 ] The will and codicil are found at Tab 2(c) of the Application Record.

[ 11 ] The Testator executed two wills that were drawn by her previous solicitor, George Banks.

[ 12 ] In the will dated the 15 th day of January 1992, which is found at Tab B in the Supplementary Application Record, the Testator at paragraph 6(b) stated the following:

To transfer and deliver all my right, title and interest in my matrimonial residence, being real estate municipally known as 5 Birchmount Avenue, in the City of Welland, to my daughter, Virginia Laurel Daradick for her sole and exclusive use, ownership and benefit.

[ 13 ] In the will dated the 15 th day of April 2005, which is found at Tab C of the Supplementary Application Record, the Testator at paragraph 4(b) stated the following:

To transfer and deliver all my right and title and interest in my principal residence, being real estate municipally known as 5 Birchmount Avenue, in the City of Welland, to my daughter, Virginia Laurel Daradick , for her sole and exclusive use, ownership and benefit.

[ 14 ] Her previous lawyer had died and Calvin W. Beresh took over his practice. He took instructions from the Testator with respect to her will. She wanted to change one of the executors because of the death of her son James. She named David as the executor and Paul as the alternate.

[ 15 ] She also, according to the affidavit of Virginia Laurel Daradick, wanted some small financial bequests to be made to her will. The affidavit of Virginia, dated the 5 th day of January 2012, is found at Tab 2 of the Application Record.

[ 16 ] As stated earlier, all of the material filed by the applicant was not in any way challenged by the respondents.

[ 17 ] In her affidavit Virginia Laurel Daradick outlines in great detail the work and effort that she put into caring for her mother. She also outlines the amount of physical changes she made to the matrimonial home. None of this is challenged by the respondents.

[ 18 ] Calvin William Barry Beresh (“Beresh”) executed an affidavit dated the 18 th day of April 2012. It is found at Tab 1 of the Supplementary Application Record. As stated earlier, this affidavit was not challenged in any way or subject to any form of cross-examination by the respondents.

[ 19 ] Beresh acknowledged that he drafted the will of Ruth Caroline McKeand dated June 22, 2010.

[ 20 ] He took instructions on May 25, 2010 from the Testator. He stated at paragraph 11 the following:

I recall that during the meeting, Mrs McKeand instructed me that the Residence was to be gifted to Ms. Daradick. Accordingly, I wrote “house moms name - 165,000 to go to Virginia” on the reverse side of the Sheet.

[ 21 ] He states that his secretary did not see this note and she prepared the will without reference to the bequest.

[ 22 ] At paragraph 13 he stated:

It was through inadvertence that I did not take the instructions of “house moms name - 165,000 to go to Virginia” and record it on front of the Specific Bequests page of the Sheet. As such, the Last Will as drafted did not carry out Mrs. McKeand’s instructions.

[ 23 ] Beresh did not attend at the signing of the Will, rather a law clerk (Melanie Smith) attended. She made a memorandum.

[ 24 ] Paragraph 17 stated:

According to Ms. Smith’s memorandum, she and Ms. Campbell reviewed the Last Will with Mrs. McKeand and Ms. Daradick (who was also present) paragraph by paragraph, and compared it with the 2005 Will. Mrs. McKeand asked questions in relation to the Last Will, but only in respect of the Precatory Memorandum. When Mrs McKeand executed the Last Will, Ms. Daradick was asked to leave the room. This sequence of events is confirmed by Ms. Campbell’s memorandum. …

[ 25 ] Beresh wrote a letter to the executor David McKeand on January 25, 2011. He acknowledges the error referred to above. This is found at Tab 1 (M) of the Supplementary Application Record.

[ 26 ] The lawyer for the executor replied on February 1, 2011. He stated that he would not consider rectifying the will because of the error.

OPTIONS

[ 27 ] As I view the problem, there are three avenues that the applicant could take. They are:

1. Sue the drafting lawyer for negligence.

2. Sue the estate for the amount of the money and time that the applicant has provided to the mother and the matrimonial home.

3. Apply to the courts for a rectification of the last will.

[ 28 ] All of these avenues will cost a lot of money and further divide the family.

[ 29 ] I pointed this out to counsel at the hearing. They wanted to proceed only on the issue of rectification.

LAW OF RECTIFICATION

[ 30 ] Does the court have the power to rectify a will when the testator’s instructions have not been followed by the lawyer drafting the will?

[ 31 ] It would appear that the law with respect to rectification is changing.

[ 32 ] The courts must be very vigilant when it comes to considering rectification. The reason is quite obvious, the testator is dead. The courts are then left with evidence that may be tainted by self interest.

[ 33 ] The respondents cited a number of court cases from the Provinces of Alberta and British Columbia, which state that the courts have very limited powers in rectifying wills. They also cited Feeney’s Canadian Law of Wills , 4th edition.

[ 34 ] At 3.26 Feeney wrote the following:

The approach in Re Rapp was rejected by McFayden J. of the Alberta Court of Queen’s Bench, and more recently by Melvin J. and Burnyeat J. of the Supreme Court of British Columbia. Justice Burnyeat suggested that the Rapp decision overlooked the contrary decision of the Court of Appeal in Clark v. Nash , which should be followed. It seems that the traditional restrictive view is still law.

[ 35 ] However the author does state at 3.28 the following:

…Yet, when the mistake is that of a draftsperson who inserts words that do not conform with the instructions he or she received, then, provided it can be demonstrated that the testator did not approve of those words, the court will receive evidence of the instructions (and the mistake) and the offending words may be struck out.

[ 36 ] The Court of Appeal in British Columbia stated in Clark v. Nash , [1987] B.C.J. No. 304 the following:

… [N]o case supports the proposition that a Will that is a complete Will so far as form and content are concerned can be rectified by substituting as residuary beneficiaries the names of ten persons who are legatees named in that Will for two other persons.

[ 37 ] As I stated earlier, the respondents did not cite any cases from the Province of Ontario.

[ 38 ] In the Robinson Estate v. Rondel , [2010] O.J. No. 2771 , Mr Justice Belobaba wrote the following at paragraphs 24, 25, 26 and 27:

24. Where there is no ambiguity on the face of the will and the testator has reviewed and approved the wording, Anglo-Canadian courts will rectify the will and correct unintended errors in three situations:

(1) where there is an accidental slip or omission because of a typographical or clerical error;

(2) where the testator’s instructions have been misunderstood; or

(3) where the testator’s instructions have not been carried out.

25. The equitable power of rectification, in the estates context, is aimed mainly at preventing the defeat of the testamentary intentions due to errors or omissions by the drafter of the will. This is a key point. Most will-rectification cases are prompted by one of the above scenarios and are typically supported with an affidavit from the solicitor documenting the testator’s instructions and explaining how the solicitor or his staff misunderstood or failed to implement these instructions or made a typographical error.

26. Courts are more comfortable admitting and considering extrinsic evidence of testator intention when it comes from the solicitor who drafted the will, made the error and can swear directly about the testator’s instructions. They are much less comfortable relying on affidavits (often self-serving) from putative beneficiaries who purport to know what the testator truly intended.

27. Here is how Feeney’s puts it:

[T]he application for rectification is usually based on the ground that, by some slip of the draftsman’s pen or by clerical error, the wrong words were inserted in the will; the mistake may be latent in the letters of instruction or other documents. Yet, when the mistake is that of the draftsperson who inserts words that do not conform with the instructions he or she received, then, provided it can be demonstrated that the testator did not approve those words, the court will receive evidence of the instructions (and the mistake) and the offending words may be struck out.

[ 39 ] The Ontario Court of Appeal upheld the decision of Justice Belobaba. See Robinson Estate v. Rondel , 2011 ONCA 493 , [2011] O.J. No 3084 .

[ 40 ] Mr. Justice Pattillo, in Lipson (Re) , [2009] O.J. No 5124 , stated the following at paragraphs 32 and 39-42:

32 It has been long established in Ontario that the court has the power to delete or add words to a will by necessary implication.

39 In Mistakes In Wills In Canada , by Stan Sokol (Carswell, 1995), at p. 95, the learned author, referring to the above noted cases, summarizes the criteria which must be established before a court can add words to a will as follows:

1. upon reading of the will, it must be apparent on the face of the instrument that a word or words have been omitted from the will,

2. from a reading of the will as a whole, the intention of the testator must be so strongly expressed that the language of the will could not support a reasonably contrary intention or interpretation, and

3. from a reading of the whole will and in light of surrounding circumstances, the court must be able to determine, with sufficient precision, what the omitted words were which are required to give effect to the testator’s intention.

40 In Myhill Estate v. Office of the Children’s Lawyer (2001), 39 E.T.R. (2d) 90 (Ont. S.C.J.) , Haley J., in considering whether certain words should be added to a will, referred to and applied the three criteria set forth in Mistakes in Wills in Canada , supra.

41 Surrounding circumstances include circumstances surrounding the making of the will; the testator’s property at the time of the will; the testator’s use of property; the testator’s relationship to named and potential beneficiaries; and prior wills. See: Harmer Estate , supra, at para. 30 and 31; Mistakes in Wills in Canada , supra, pp. 211-214.

42 In my view the above principles concerning when a court can delete or add words to a will apply not only in circumstances where a word or words are omitted but also where an incorrect word or words are contained therein. In either case, before a court can delete or insert words to correct an error in a will, the Court must be satisfied that:

(i) Upon a reading of the will as a whole, it is clear on its face that a mistake has occurred in the drafting of the will;

(ii) The mistake does not accurately or completely express the testator’s intentions as determined from the will as a whole;

(iii) The testator’s intention must be revealed so strongly from the words of the will that no other contrary intention can be supposed; and

(iv) The proposed correction of the mistake, by the deletion of words, the addition of words or both must give effect to the testator’s intention, as determined from a reading of the will as a whole and in light of the surrounding circumstances.

FINDINGS

[ 41 ] From the material filed and the cases cited, I am able to make the following findings. I am also mindful of the fact that there was no rebuttal evidence called by the respondents. The only documentation filed was some case law.

[ 42 ] Because there was no rebuttal evidence led, I am able to surmise that the facts stated in the affidavits of the applicant and Mr. Calvin Beresh are not challenged.

[ 43 ] I make the following findings:

1. The Testator had made two wills with her previous solicitor Mr. Banks. These wills were dated the 15 th day of January 1992 and the 15 th day of April 2005.

In each will she left the matrimonial home at 5 Birchmount to her daughter, provided her husband was not alive at the time of her death.

2. Her husband, James Cecil Lauren McKeand also made a will dated the 15 th day of January 1992, and a codicil dated the 18 th day of April 1997. By those documents he left the matrimonial home at 5 Birchmount to his daughter, provided his wife was not living at the time of his death.

3. Mr. Banks died and Calvin William Barry Beresh took over his practice. The Testator had him update her will. Her husband and son James had died.

4. She also wanted to leave some small bequests to family members.

5. Mr. Beresh took notes, and one note states that the property known as 5 Birchmount would still go to her daughter Virginia. These notes were made at the time of his taking instructions from the Testator.

6. In the unchallenged affidavit of Calvin Beresh, he acknowledges that he made an error and did not include the matrimonial home in her will.

7. In the affidavit of Virginia Daradick she outlines the financial input into the matrimonial home, the time and care that she gave to her father and mother. She and her family moved into the matrimonial home of her mother so that she could give better care to her mother.

[ 44 ] I acknowledge that changing a will is not to be taken lightly. It is a document that the courts will not change except in the most exceptional circumstances.

[ 45 ] I find that the error of Mr. Beresh can and should be corrected. Not to do so would be tragic. If the will were not rectified then the only other course of action would be a lawsuit against the lawyer or the estate. This would be very costly.

[ 46 ] Therefore, the will of Ruth Caroline McKeand will be rectified by adding that the property known as 5 Birchmount Avenue, Welland, will be bequeathed to Virginia Laurel Daradick. All other terms will remain the same.

[ 47 ] I may be spoken to with respect to costs or, if counsel agree, I will entertain written submissions on the following time schedule: The applicant shall file with the court her submissions within 30 days of the release of these reasons; the respondents shall have 15 days from the receipt of the applicant’s submissions; the applicant shall have five days to respond to the respondents’ submissions.

Matheson J.

Released: October 9, 2012

COURT FILE NO.: 4843/12
DATE: 2012/10/09

ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N: Virginia Laurel Daradick Applicant - and – David Brock McKeand, Estate Trustee of the Estate of Ruth Caroline McKeand, Paul McKeand, Peter McKeand and Gordon McKeand Respondents

ENDORSEMENT

Matheson J.

Released: October 9, 2012