Court File and Parties

COURT FILE NO.: CV-11-10798 Strategic Charitable Giving Foundation v. Greg Cunningham

COURT FILE NO.: CV-11-17257 DATE: 2012-11-20

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Greg Cunningham Applicant

– and –

Quadrus Charitable Giving Program The John & May Haggans Giving Foundation and Gerald Head as Estate Trustee for the Estate of Mary Patricia Haggans, Deceased, and Gerald Head, personally Respondents

Owen D. Thomas, for the Applicant Matthew Furrow, for the Respondent, Strategic Charitable Giving Foundation

HEARD: September 27, 2012

AND BETWEEN:

Strategic Charitable Giving Foundation v. Greg Cunningham

COURT FILE NO.: CV-11-17257

Strategic Charitable Giving Foundation Applicant

– and –

Greg Cunningham, Gerald Head as Estate Trustee for the Estate of Mary Patricia Haggans, Deceased, and London Life Insurance Company Respondents

Matthew Furrow, for the Applicant Owen D. Thomas, for the Respondent Greg Cunningham

HEARD: September 27, 2012

Reasons for Judgment

Thomas J.:

Applications

[1] There are two applications to be determined in this decision. They relate to the determination of who will receive a particular position of the Estate of Mary Patricia (May) Haggans (“Haggans”) who died on June 19, 2010, leaving a Will dated October 19, 2009. The Disputed Funds amount to approximately $264,000 and are the proceeds of a segregated fund and a Retirement Income Fund (“RIF”) annuity both issued by the London Life Insurance Company (“London Life”) and both amounting to insurance policies (a fact not disputed by any participant).

[2] Greg Cunningham is the nephew of Haggans and her closest living relative. His application requests:

An Order that Greg Cunningham is the designated beneficiary of Insurance Policy Plan numbers M158194273 and M159294581, issued on June 15, 2009 and July 8, 2009 respectively, and payment of said proceeds to Mr. Cunningham.

[3] Strategic Charitable Giving Foundation (the “Foundation”) is a non-profit charitable corporation registered as a public foundation with the Canada Revenue Agency. The Foundation receives donations from benefactors who wish to establish a personal lasting charitable fund that provides annual donations to their preferred charities.

[4] The Foundation seeks one of three possible orders:

1. rectifying the 2009 Will to remove paragraph 3 (the Insurance Clause) in its entirety, or otherwise as necessary to effect the payment of the Disputed Funds to the John & May Haggans Foundation;

2. in the alternative, declaring that paragraph 3 of the Will is properly interpreted not to refer to the Disputed Funds;

3. in the further alternative, declaring that the Disputed Funds were not re-designated by paragraph 3 of the Will pursuant to the Insurance Act, R.S.O., 1990, c. 1.8 and the Succession Law Reform Act, R.S.O. 1990, c. S.26 (“SLRA”).

[5] Counsel for the estate attended at the outset on behalf of the executor, Gerald Head. The application has been withdrawn against Head and the estate takes no position in the outcome of these proceedings beyond the subsequent issue of costs. Head was examined prior to this returnable date as was Suzanne Dajczak, the solicitor who drafted the Will and Joanne Ohlman, Haggans’ financial advisor and close friend.

Background

[6] I want to acknowledge the excellent materials provided by both counsel in this matter. For this section on the historical background of the issues before me I have relied heavily on the chronology of events set out in their factums.

[7] Haggans was born March 17, 1917. She lived in Windsor and died June 19, 2010 at the age of 93 years. Her husband John (Jack) Haggans passed away in 2001.

[8] It is clear that, dating back at least to her husband’s death, Haggans had a long-standing intention to leave much of her assets to charity. In a Will she executed on June 28, 2002 (the “2002 Will”), Haggans made $17,000 in specific bequests, and left the residue of her estate split between four charities: St. Andrews Presbyterian Church, the Hospice of Windsor, the Canadian National Institute for the Blind, and Windsor Regional Cancer Centre. This Will contained an Insurance Clause that will be discussed below. At the time, Haggans’ net worth was slightly under $1 million.

[9] In or about May 2007, Haggans first established a charitable giving fund with the Foundation. By making an initial irrevocable donation of $200,000 to the Foundation, Haggans established a charitable giving fund which she named the “John & May Haggans Foundation” (the “Haggans Foundation”). The Haggans Foundation was dedicated to providing annual donations to five of Haggans’ favourite charities: St. Andrews Presbyterian Church, the Hospice of Windsor & Essex County, the Canadian National Institute for the Blind, Muscular Dystrophy Canada, and the Alzheimer Society of Canada.

[10] Haggans executed a new Will on July 20, 2007 (the “2007 Will”). The 2007 Will was similar to the 2002 Will. It made $40,000 in specific bequests, and changed the Estate Trustees. Instead of leaving the residue to the specific charities named in the 2002 Will, the 2007 Will left the residue to the Haggans Foundation. It was substantially the same as the clause in the 2002 Will, adding only the words “alive at my death” after Cunningham’s name.

[11] In the summer of 2009, Haggans purchased two financial policies from London Life: a “Freedom Fund Investment” segregated fund, and a RIF – collectively, the Disputed Funds. She applied for these funds on June 12, 2009 and July 8, 2009 respectively.

[12] Haggans designated the beneficiaries of the Disputed Funds to be “Quadrus Charitable Giving Program The John & May Haggans Giving Foundation” and “Quadrus Charitable Giving Foundation the John & May Haggans Charitable Giving Program” respectively. (“Quadrus” referred to Quadrus Investment Services, the affiliate of the Foundation in which the Haggans Foundation’s funds were at that time invested.)

[13] On October 19, 2009, Haggans executed a final Will (the “2009 Will”). The 2009 Will changed the Estate Trustees from the 2007 Will, and increased the bequests to the specific legatees of the 2007 Will to total $367,500. It made no other changes. The Haggans Foundation was the residuary beneficiary.

[14] The Insurance Clause in the 2009 Will was identical to that in the 2007 Will. The relevant part reads:

I DECLARE that the proceeds of any policy of insurance owned by me at the date of my death, and under which I am the insured within the meaning of the Insurance Act, R.S.O., 1990 and amendments thereto, no matter to whom the same shall be presently payable, shall be paid to GREG CUNNINGHAM, alive at my death. […] This is a declaration within the meaning of the Insurance Act, R.S.O., 1990 and amendments thereto.

[15] Haggans suffered from an ocular degeneration and could not read normally-sized text. Immediately after execution of the 2009 Will, Dajczak reviewed the terms of the Will with Haggans verbally. Dajczak paraphrased the Insurance Clause to Haggans rather than read it verbatim. Head advised that he as well read the Will to Haggans.

[16] Shortly before the execution of the 2009 Will, approximately $340,000 had been invested in the Disputed Funds: approximately $247,000 in the segregated fund and approximately $93,000 in the RIF. It therefore appears that in round numbers, Haggans had approximately $300,000 in the Disputed Funds invested with London Life, and $1,000,000 in other investments.

[17] Haggans died June 19, 2010. Her personal worth in her estate (excluding the Haggans Foundation and the Disputed Funds) was approximately $700,000 in personal property and $160,000 in real estate net of encumbrances. Additionally, the Disputed Funds were then worth approximately $255,000. Haggans was the insured under a policy of life insurance with London Life then worth approximately $7,200.

[18] Head was appointed Haggans’ Estate Trustee with a Will on September 8, 2010. In October 2010, as part of his administration of Haggans’ estate, Head executed a Claimant’s Statement to London Life to have the Disputed Funds paid to the Foundation.

[19] In November 2010, London Life advised Ohlman that the Insurance Clause might override the beneficiary designations in the Disputed Funds and that the Disputed Funds might therefore be payable to Cunningham. Cunningham has since asserted that he is the rightful recipient of the Disputed Funds.

[20] The funds have now been paid into court.

[21] The estate has been nearly fully distributed by Mr. Head, but residue of approximately $140,000 remains. The only outstanding liabilities are lawyer’s fees.

[22] Haggans was the insured under a life insurance policy issued by London Life dated July 27, 1936 (the “1936 Policy”). The face value of the policy was $1,000. Its payout value on death was approximately $6,300 in 2006, and on Haggans’ death in 2010 was approximately $7,200.

[23] Prior to his death, the beneficiary of the 1936 Policy was Haggans’ husband Jack. After his death, Haggans re-designated the beneficiary as her nephew, Cunningham.

[24] In the 2009 Will, Haggans left bequests of $100,000 to Head and Ohlman, with whom she also had close personal relationships.

[25] Haggans left bequests of $50,000 each to Karen I. Sutherland and Carolyn Head. Carolyn Head and Karen Sutherland were sisters and were Haggans’ god daughters. Carolyn Head is Gerald Head’s spouse.

[26] Haggans left bequests of $25,000 each to David Head and Kevin Head, the sons of Gerald and Carolyn. David and Kevin were both god sons to Haggans and her husband.

[27] Haggans left bequests of $5,000 each to Alexandra Patricia Lacivita, Lauren Lee Mlaczak and Melissa Sponarski. These three women are also god children to Haggans and her husband.

[28] Haggans left a bequest of $2,500 to Russell William Cunningham, her great-nephew. Russell is Cunningham’s son.

[29] In October 2009, when Dajczak drafted the 2009 Will, Haggans’ instructions were “to change the beneficiary amounts and the estate trustees.”

[30] When she met with Dajczak to finalize and execute the 2009 Will on October 19, 2009, Haggans brought a copy of the 2007 Will, hand-annotated with numbers and names of legatees.

[31] The annotated 2007 Will formed the basis for the changes to the amounts each legatee received. Every amount noted, or legatee named, on the annotated 2007 Will was reflected in the 2009 Will. The only two legatees for whom no annotation was made were Russell William Cunningham and Cunningham.

[32] In this proceeding Dajczak provided the following evidence by way of affidavit: Haggans was a client of hers for several years prior to the execution of her Last Will and Testament dated October 19, 2009; Haggans attended my office on October 19, 2009 and executed a Will for which she had previously provided instructions; she read the Will to Haggans in its entirety clause by clause; Ms. Haggans approved the language in the Will, before executing it; the Will was duly executed by Haggans in my presence and witnessed by her and Ms. Hamilton in the presence of each other; the Will executed by Haggans was in complete conformity to all of her instructions. It did not contain any drafting errors, and she did not have any misunderstanding of the Will instructions provided by Haggans.

[33] Dajczak and Ohlman described Haggans as a very sophisticated client in the knowledge of her investments, banking and the Foundation. She was independent, living alone in her own home until her death and had a sound, smart mind.

[34] The Foundation to date has received from Haggans a total of $750,000. The Foundation will receive the balance of the residue of $140,000 less outstanding estate legal fees. These amounts are without taking into account the Disputed Funds.

Foundation’s Position

[35] The Foundation states that Haggans always intended that the Disputed Funds should be paid to the Foundation for her charities. Payment to Cunningham would only come as a mistake.

[36] The Foundation seeks a ruling that direct evidence from third parties about Haggans intentions are admissible to assist me in rectifying the Will. They offer the evidence of Ohlman, Head, and Dajczak that Haggans wanted the charities to receive the proceeds of these policies. The argument follows that Ohlman, Head, Dajczak and Haggans failed to understand that the segregated fund and RIF were in fact not just investments but in law insurance policies potentially captured by the insurance clause in the Will. As a result, Haggans’ instructions are not being carried out and require rectification. This is most effectively carried out by deleting paragraph 3 of the Will and thereby ensuring Cunningham only receives the small London Life policy for which he is the named beneficiary.

[37] Alternatively, the Foundation suggests that an examination of the indirect circumstances of the drafting of the Will would allow the court to interpret clause 3 as only operating to capture the small “traditional” life insurance policy material above.

[38] Finally, it is argued that the terms of the Insurance Act and the SLRA operating together would require that I find clause 3 of the Will insufficient to redesignate the Disputed Funds from the Foundation to Cunningham.

Cunningham’s Position

[39] This applicant maintains the terms of the 2009 Will including the insurance clause, clause 3, are clear and unambiguous. It would be inappropriate and wrong in law to admit third party hearsay evidence of Haggans’ intentions in these circumstances particularly in the face of the sworn evidence of the drafting solicitor. The interpretation of the Will is straightforward and the SLRA has no application to the effect of clause 3.

Analysis

[40] It is my view that Cunningham’s position is to be preferred and so let me deal with the Foundation’s arguments individually and explain why I believe they are not compelling in these circumstances.

The Succession Law Reform Act (“SLRA”)

[41] The Foundation argues that the insurance clause in Haggans’ Will cannot operate to redesignate the beneficiaries of the Disputed Funds because of the operation of s. 52 of the SLRA.

[42] Section 52(1) says the following:

A revocation in a will is effective to revoke a designation made by instrument only if the revocation relates expressly to the designation, either generally or specifically.

[43] Since the clause does not relate to the London Life investments/policies expressly the previous designation to the Haggans’ Foundation must prevail.

[44] That argument must fail. Section 54(2) of the SLRA states:

This part does not apply to a contract or to a designation of a beneficiary to which the Insurance Act applies.

[45] The case of Littlechild Estate v. Littlechild, 2011 ONSC 7695, 2011 CarswellOnt 15283 is a decision of Healey J. and is directly on point. In that case, Mr. Littlechild had made numerous testamentary dispositions in the years just before his death. Two years before he died he transferred his RRSP from TD Waterhouse to the London Life Insurance Company and designated the applicant, his estranged spouse, as the beneficiary of this investment product. Shortly before he died he signed a change of beneficiary designation with London Life in which he deleted the applicant and added his two sons. Ten days later and eleven days before he died he executed his final Will leaving his estate to the applicant and making her beneficiary of his RRSP.

[46] The issue then became; was the final Will effective in revoking the previous London Life designation? Healey J.’s analysis is instructive in the case before me. At paras. 6-9, the court finds the following:

It is the evidence of the respondents that at the time that the deceased transferred his RRSP from TD Waterhouse on March 28, 2009, he applied for Freedom Funds Investment policy number P[Omitted]. Although policy #P[Omitted] is structured as an RRSP, the submission of the respondents is that it is an insurance policy. Such insurance contract is also known as a segregated fund policy based on the life of the deceased. Policy #P[Omitted] was set up as an RRSP and as such is a deferred annuity. Once the deceased purchased the Freedom Funds Investment policy he no longer owned the investment funds, but rather he was the annuitant under the policy. In its segregated fund information brochure, London Life describes the product as follows:

The London Life investment policy is an individual variable insurance contract based on the life of the insured person, also known as the annuitant, you name on the application form. If the policy is a registered retirement savings plan (RRSP) or a non-registered policy, it is a deferred annuity, which generally means annuity payments commence following the maturity date…

On the application form signed by the deceased on March 28, 2009, which is titled “Application for Guaranteed Investment/Market Watch/Freedom Fund” it is noted that the application is with respect to an RSP and that the deceased was applying for the Freedom Fund Investment option.

This court has no evidence as to who completed the application form, the extent to which it was explained to the deceased, or the knowledge of the deceased with respect to investments or life insurance. There is no evidence that the deceased received the information brochure referred to above, and it is noted that the date on that informational material is July 2010.

This absence of evidence, however, does not change the fact that policy #P[Omitted] is an insurance contract based on the life of the insured. The Freedom Fund Investment policy provided by London Life provides for a death benefit guarantee which requires London Life to make a lump sum payment if the last annuitant dies before the policy matures.

[47] Justice Healey went on to find that the London Life product in question was life insurance and therefore the Insurance Act applied as did the application of s. 54(2) of the SLRA.

[48] It has been appropriately conceded in this matter that the Disputed Funds are the product of London Life Insurance policies which are governed by the Insurance Act and therefore, by operation of s. 54(2) of the SLRA, s. 52 is of no assistance to the Foundation.

Rectification and Interpretation

[49] Cunningham’s counsel argues that the decision of the Ontario Court of Appeal in Robinson Estate v. Robinson, 2011 ONCA 493, [2011] O.J. No. 3084, leave to appeal to S.C.C. refused, [2011] S.C.C.A. No. 536, is the complete answer to the rest of the issues raised by the Foundation including the appropriateness of rectification. It follows then that some close attention must be paid to the latest binding authority on the powers of this court in considering its probate and constructive functions.

[50] In Robinson, the testator had two Wills. One dealt with her property in Spain, the other with her Canadian property. On the last revision of the Canadian Will there was no discussion with her Canadian solicitor about the European Will or that property. There was a standard revocation clause in the Canadian Will which acted to revoke the earlier European document. The issue was whether the direct evidence of third parties could be admitted to suggest that the testator had intended her Spanish property to pass under the terms of the European Will.

[51] The application judge, Belobaba J., refused to admit the third party evidence. In Robinson Estate v. Robinson, 2010 ONSC 3483, [2010] O.J. No. 2771, at paras. 39-40, he said the following:

The applicants argue that to determine whether a testator knew and approved of the contents of her will, the court will inquire as to whether the words in the will reflect her intention. If the testator is mistaken as to the legal effect of a clause, she has not approved of the will.

With respect, this is precisely what a court cannot do, at least not under the law as it stands today. As Hull and Hull explain in the excerpt quoted above, “The real question is: Are the words of the will the testator’s words?” If the words are not the testator’s words, but were drafted or inserted in error by the solicitor, rectification may be available. However, if no errors were made by the solicitor and the words in the will were reviewed and approved by the testator, rectification will not be available simply because the testator was mistaken about their legal effect.

[52] The application judge, at paras. 45-47, viewed the law on this issue as clear no matter how persuasive the circumstances:

The position being urged by the applicants would give the court the following power: Even where there is no ambiguity on the face of the will, and no drafting error of any sort, and the will has been reviewed and approved by the testator before it was executed, the court may nonetheless intervene and rectify simply on the basis of third party affidavit evidence that the testator was mistaken and did not mean what she said.

This would be a significant change in the law.

If a long-standing legal principle is to be changed, it should be done by legislation or by a Court of Appeal. I am not about to expand the limits of the rectification power and reverse a century of case law on the basis of the submissions that were made on these applications, however sympathetic my views may be given the facts of this particular case.

[53] The Court of Appeal agreed with the application judge. Justice Juriansz, writing for a unanimous panel, considered the issue on appeal at paras. 18-20:

There is only one issue raised by this appeal: Did the application judge err by holding that the affidavit evidence tendered by the appellant and Mr. Silverman regarding the testamentary intentions of the testator was not admissible to interpret the 2006 Canadian Will?

I have set out the single issue above, even though the appellant and Mr. Silverman advance a number of technical arguments. The appellant argues that the application judge could have (a) rectified the 2006 Canadian Will by using the deletion power to delete the revocation clause, or (b) exercised his interpretation function to interpret the 2006 Canadian Will to deal only with the testator’s Canadian property so that the European assets could be distributed under the 2002 Spanish Will. Mr. Silverman adds the argument that the application judge could have rectified the 2006 Canadian Will by granting the equitable remedy of rectification.

These arguments are all based on the premise that the application judge had been able to find as a fact that the testator did not intend to revoke her 2002 Spanish Will. The arguments then proceed to address how the application judge should have given effect to this finding of fact. I do not need to discuss these arguments in any detail because I agree with the application judge that he had no legal route to make that finding. I therefore do not accept the initial premise.

[54] Importantly, the court found that the application judge was sitting as a court of construction, and that the focus of the court in that role, must be limited, at least in part, to provide certainty. At paras. 22-23, Juriansz J.A. stated:

It seems to me that the essence of the appellant’s and Mr. Silverman’s position is that the application judge, sitting as a court of construction, should have admitted the evidence. As I conclude that the application judge was correct to reject the evidence tendered in this case, I need go no further. It is unnecessary to embark on a technical discussion of the court’s deletion power, the scope of its interpretation function and the equitable remedy of rectification.

No doubt the appellant and Mr. Silverman are correct that the task of the application judge, sitting as a court of construction, was to give effect to the testator’s testamentary intentions. The fundamental purpose of the law of wills is to give effect to the testamentary intentions of the testator for the distribution of her estate. The general rule of the common law is that in construing a will, the court must determine the testator’s intention from the words used in the will, and not from direct extrinsic evidence of intent.

[55] In Robinson, the Court of Appeal, at para. 28, confirmed the rejection of third party evidence of the wishes of the testator where the Will was reviewed and the language approved before execution.

The evidence was inadmissible because it attempted to establish a contrary intention to that determined by giving the words of the will their ordinary and natural meaning. To admit the evidence would have created uncertainty where no uncertainty existed in the words of the will.

[56] Counsel for the Foundation asks me to consider the content of para. 24 of the application judge’s decision.

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.

[57] It is suggested that the drafting solicitor did not carry out the testator’s instructions because she failed to realize that the London Life investments were insurance policies that would be captured by clause 3 of Haggans’ Will. As such, I can use extrinsic evidence to rectify the failures. In Robinson, at paras. 25-26, we find the following:

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.

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.

[58] But here, unlike the circumstances discussed in Robinson, I have an affidavit from the solicitor, Dajczak who swears to its conformity with instruction and the lack of any error.

[59] Counsel for the Foundation points to criticism in the legal community arising from the effects of the Court of Appeal’s decision in Robinson; in particular, a paper delivered by Cullity J. (“Rectification of Wills – A Comment on the Robinson case” (2011) Law Society of Upper Canada: 14th Annual Estates and Trusts Summit). The premise of that paper is that the Court of Appeal unfortunately blurred the lines between the court’s probate jurisdiction and when it sits as a court of construction. The argument is that the application judge is entitled to look to extrinsic evidence of the testator’s intention when exercising its probate function.

[60] The paper contains references to the decision of D.M. Brown J. in Balaz Estate v. Balaz, [2009] O.J. No. 1573 (S.C.). At paras. 9-10, Brown J. discusses the history of the distinct tasks of the court when examining a disputed testamentary document and what evidence it can use in each of its functions:

In any event, any such distinction now stands only as a matter of historical interest. The Surrogate Court was abolished in 1989: S.O. 1989, c. 56, s. 48. Its abolition wrought no change in the expressed jurisdiction of the Supreme Court of Ontario – compare the Courts of Justice Act, 1984, s. 2(1), with the Courts of Justice Act, S.O. 1989, c. 55, s. 10(2). The Superior Court of Justice exercises exclusive jurisdiction in testamentary matters – it grants probate and it interprets wills. It does not change hats when it moves from the first task to the second. Both tasks form part of its broad civil jurisdiction. Consequently, distinguishing between “courts of probate” and “courts of interpretation” does not aid the inquiry about how this court should approach a request to rectify a will because of a mistake.

The common law recognizes that proceedings involving wills may involve two distinct questions: (i) What document constitutes the will of which the testatrix knew and approved? (ii) What does the language of the will mean? There is some suggestion that historically a broader range of evidence has been admissible to determine the first question, than the second: Youdan, supra., p. 230. Whether that remains the case is a question I need not consider. Suffice it to say, where a court seeks to ascertain whether the testatrix knew and approved of certain language in her will, it can take account of evidence about the circumstances surrounding the making of the will, including referring to earlier wills or drafts of the particular will as well as direct evidence of her intention: Youdan, supra., p. 230; Barylak, supra., para. 26 to 29; Alexander Estate v. Adams, [1998] B.C.J. No. 199 (S.C.), para. 19; Re Reynette-James (deceased), Wightman v. Reynette-James [1975], 3 All E.R. 1037 (Ch D.), at 1039d.

[61] The Cullity paper recognizes the foresight shown by D.M. Brown J. in Balaz, at p. 15:

[A]lthough — perhaps ominously – Brown J. in Balaz Estate described the distinction between courts of probate and courts of construction as now of only historical interest, this does not seem consistent with the Court of Appeal’s acceptance that it was essential to the appellants’ case that the judge at first instance was sitting as a court of construction. It is implicit in the reasons of the court that the traditional principles applicable to cases of construction continued to apply. What is perplexing and disquieting is the failure to attribute any recognition to the survival of the large body of law that traditionally has delineated the probate jurisdiction that is now possessed by the Superior Court of Justice.

[62] Implicit or not it seems impossible to shrink from the binding application of Robinson when considering Haggans’ 2009 Will. Sitting as a court of construction I am left with the clear language of clause 3 which found its way into Haggans’ Will in 2002, 2007 and finally 2009. The testatrix was bright and sophisticated. She had a broad knowledge of her estate and a firm view of where her legacy and that of her husband was to go.

[63] The affidavit of the drafting solicitor does not call into question the execution process or the content of the document in question. It seems clear that the Will was read to Haggans on more than one occasion and, as mentioned, clause 3 was not new.

[64] There are strong policy reasons for maintaining the certainty of testamentary documents. In Vout v. Hoy, 1995 CanLII 105 (SCC), [1995] 7 E.T.R. (2d) 209 S.C.C., Sopinka J. stated if a Will has been “read over to or by a testator who appeared to understand it, it will generally be presumed that the testator knew and approved of the contents and had the necessary testamentary capacity.”

[65] In the circumstances here that presumption has not been rebutted. Even if I could receive all the evidence offered by the Foundation, I refuse here to believe that an exercise of receiving hearsay evidence from those assisting Haggans will leave me better informed than reading her words themselves.

[66] Ohlman claims to have attended a meeting with Head and Haggans immediately before the signing of the 2009 Will where Haggans was alleged to have declared that the beneficiaries of the policies was the Foundation. Head denies that Ohlman was at a meeting discussing the designation of the policies to the Foundation.

[67] Accordingly, based on Head’s denial of a meeting with Ohlman, the beliefs and opinions of Ohlman as to Haggans’ intentions can only be derived from private conversations held between Haggans and herself.

[68] Justice Cullity recognizes in the final paragraphs of his paper the potential problem of Robinson in cases like this where a beneficiary suggests failure to achieve the intentions of the testatrix.

Of particular importance is the impact the reasoning may have in cases where, because of a drafting mistake, the will is not consistent with the instructions given by the deceased. As I have indicated, Belobaba J. would have accepted such evidence even though it would not normally be admissible in a court of construction in the absence of an equivocation. The Court of Appeal did not refer to the question and, while it seems inconceivable that such evidence would now be considered to be inadmissible and could not be given effect, it is by no means obvious how an exception for such cases could be grafted onto the reasons of the Court of Appeal with their insistence that the court was sitting as a court of construction.

[69] In the final analysis I must follow Robinson and find there is no need to create uncertainty where no uncertainty exists. In all the circumstances I reject the admissibility of the evidence of Ohlman, Head and the solicitor Dajczak where it may suggest Haggans’ intentions regarding the Disputed Funds. I cannot hope to reconcile Dajczak’s comments on examination with the content of her sworn affidavit filed in this proceeding.

[70] In coming to this conclusion I recognize the Foundation’s argument that I should apply the “armchair rule” to consider the evidence of surrounding circumstances and thereby discern Haggans’ subjective intent. Haggans was a sophisticated testatrix. She was very aware of her estate. Without regard to the Disputed Funds, she has made a sizeable contribution to her charities. The 2009 Will increased bequests to named friends and relatives. Cunningham is her closest living relative. These surrounding circumstances do not assist the Foundation.

[71] The other proffered evidence from Ohlman, Head and Dajczak goes far beyond facts and circumstances surrounding Haggans’ 2009 Will and purports to directly address her intention requiring an expansion of the common law: (see Robinson, at para. 26, 32).

[72] There is no equivocation present. The affidavit of the solicitor Dajczak erases any concern about Haggans’ intentions.

[73] The proceeds of Insurance Policy Plan number M158194273 and M15924581 are captured by clause 3 of the last Will of Mary Patricia Haggans and, pursuant to its operation, should be paid to Greg Cunningham.

[74] It follows that the application of the Foundation is dismissed.

[75] If the issue of costs cannot be determined by the parties, I suggest that they exchange bills of costs and provide those to this court within 30 days of the release of these reasons. Thereafter a conference call can be convened with me by speaking to the trial coordinator. That call should include Mr. Chandler, counsel for the estate.

[76] If I do not receive bills of costs in 30 days there will be no order as to costs.

Original signed “Thomas J.”

Bruce Thomas Justice

Released: November 20, 2012