ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 71/12
DATE: 2012-12-03

IN THE MATTER OF THE ESTATE OF MARY HOEDL

James Bennett, for the Estate

Shael Eisen, for the beneficiary Klara Oyler

HEARD: November 23, 2012 at Woodstock

HEENEY R.S.J.:

Background

1The moving party in this motion is Klara Oyler, who is one of the residual beneficiaries under the will of Mary Hoedl dated July 10, 2006. Mary Hoedl died on June 9, 2011, leaving an estate valued at slightly more than $600,000.

2The executor of the estate is Olie Mandryk, who is also the lawyer who drafted the will. Following the death of Mrs. Hoedl, Mr. Mandryk wrote a letter to all of the residual beneficiaries dated November 9, 2011, in which he advised that the proposed distribution of the residue would be as follows: 1/3 rd to Klara Oyler; 1/3 rd to Mike Webber; and 1/3 rd to be divided among the four children of Stephanie Schlauch, namely Helmut Schlauch, Ingeborg Diedrich, Irene Prexel and Adelheid Prechtl. This distribution meant that the four children (“Stephanie’s children”) would each receive 1/12 th of the estate.

3Two weeks later, Mr. Mandryk realized that he had made an error. Upon checking the notes he had made at the time he drafted the will, he realized that the residue was to be divided into six equal shares among Klara Oyler, Mike Webber and Stephanie’s four children. This meant that they would each receive 1/6 th of the residue. He wrote to the beneficiaries to advise of this.

4Unsurprisingly, Klara Oyler did not agree with the latter proposed distribution. To settle the confusion created by his two conflicting proposals, the executor commenced an application for the interpretation of the will. This motion was brought by Klara Oyler, within the context of that application, for an order that the notes of Mr. Mandryk are inadmissible at the hearing of the application.

5Normally, rulings as to admissibility are made by the trial judge. In this case, however, the parties all agree that I should make this ruling on this motion, and that the parties will be bound by it at trial. The practical reason for this approach is that my ruling may well dispense with the need for a trial altogether.

The Will and the Notes

6The residual clause in the will reads as follows:

I hereby direct the rest and residue of my estate is to be divided amongst my nephew, MIKE WEBBER, my dear friend, KLARA OYLER, and the surviving children of my spouse’s sister, STEPHANIE SCHLAUCH, of 23 Barensee, STR, Busnau, Stuttgard, West Germany 70569, in equal shares for their sole use and benefit absolutely. Provided that if any of the said beneficiaries shall have predeceased me and any issue of such beneficiary shall be living at my death, such issue shall take in equal shares per stirpes the share of the said residue of my estate to which such deceased beneficiary would have been entitled if living at my death. In the event there are no issue of any deceased beneficiary surviving, then that beneficiary’s share shall lapse and be distributed amongst the surviving beneficiaries or his/her issue as hereinbefore set out. If any person should become entitled to share in my estate before attaining the age of twenty-one years, the share of such person shall be held and kept invested by my trustee and transferred to such person when he or she attains the age of twenty-one years and living.

7The notes of Mr. Mandryk which are the subject-matter of this motion consist of a memorandum dated June 21, 2006, which was dictated by Mr. Mandryk contemporaneously with receiving instructions from Mary Hoedl. Those notes make it perfectly clear that the testator wanted to “split it 6 ways” among the residual beneficiaries. There are a total of three references in that one page memo to the fact that the residue is to be divided six ways.

Analysis

8On this motion, Mr. Eisen, for the moving party, takes the position that the plain meaning of the will is clear, and that it provides for Klara Oyler and Mike Webber to each receive 1/3 rd of the estate, and that Stephanie’s children are to divide the remaining 1/3 rd equally among the four of them. He submits that extrinsic evidence is not admissible to contradict the intention of the testator as expressed in the will.

9I agree with Mr. Eisen that the will is clear, but hold the opposite opinion as to what that meaning is. The will states that the residue to be divided equally among the following persons: Mike Webber, Klara Oyler and Stephanie’s surviving children. Since there are four surviving children, the plain meaning of the will is that the residue will be divided among six people.

10If the will had specifically named the four children, none of this confusion would have arisen. However, the fact that they were identified as members of a class, as opposed to being mentioned by name, does not alter the reality that the words of the will provide for an equal share of the residue to be given to each one of them.

11It would have been necessary to draft the will quite differently in order to achieve the result advocated by Mr. Eisen. It would have had to say that the residue will be divided into three equal shares, and that one of those shares would go to Mike Webber, one would go to Klara Oyler, and one would, in turn, be divided equally among Stephanie’s children. Clearly, the will does not say that.

12In Rondel v. Robinson Estate , 2011 ONCA 493 (Ont.C.A.), the court reaffirmed the general principal that extrinsic evidence of a testator’s intention is not admissible in the face of an unambiguous will. However, Juriansz, J.A., speaking for the court, said the following, at para. 24:

Of course, it is always possible that the testator’s expression of her testamentary intentions may be imperfect. When a will takes effect and is being interpreted, the testator is no longer available to clarify her intentions. Extrinsic evidence is admissible to aid the construction of the will. The trend in Canadian jurisprudence is that extrinsic evidence of the testator’s circumstances and those surrounding the making of the will may be considered, even if the language of the will appears clear and unambiguous on first reading. Indeed, it may be that the existence of an ambiguity is only apparent in the light of the surrounding circumstances.

13So if Mary Hoedl’s will had stated that the residue was to be divided into three equal shares, and that Mike Webber would receive one share, Klara Oyler would receive one share, and Stephanie’s children would divide one share equally among themselves, Mr. Mandryk’s notes would not be admissible to contradict those clear words by suggesting that the testator really wanted the estate to be divided six ways. That is not, however, the situation we are dealing with.

Ruling

14As already noted above, the meaning of the will is, in my view, perfectly clear, and provides for a six-way split among the individuals identified in the will. However, that issue will ultimately be determined by the trial judge. If I accept, for purposes of this motion, Mr. Eisen’s submission that the clause can also be interpreted as he suggests, then it follows that the will is not clear and unambiguous. That means that Mr. Mandryk’s notes would be admissible as extrinsic evidence to clarify the testator’s intention.

15I therefore rule that the notes are admissible at the hearing of this application.

Costs

16As agreed between counsel, costs of this motion shall be in the cause, fixed at $2,000.