ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Daniel McLaughlin, Estate Trustee of the Estate of Elizabeth Anne McLaughlin
Archie J. Rabinowitz, Deepshikha Dutt, Dean Allison, Counsel for the Applicant
Applicant
- and -
Wayne McLaughlin, Laurie Maveal, Thomas McLaughlin, Michael Corrado,
Tiffany Sloboda, Ryan McLaughlin, Leonard Corrado, T.J. McLaughlin, Christopher Corrado, Ian McLaughlin, Mark McLaughlin, Joanna McLaughlin, Sarah McCullagh, Tracy Ross, Lee McLaughlin, Joanna McLaughlin, Cameron Maveal, Alexander Maveal, Spencer Maveal, Joy McLaughlin, Denise McLaughlin and Judith Corrado
Thomas McLaughlin, In Person
Judith Corrado, In Person
Respondents
Respondents
HEARD: April 30 and May 30, 2014
REASONS FOR JUDGMENT
Lemon, J.
ISSUE
1The applicant seeks a rectification of the last will of Elizabeth Ann McLaughlin.
2The will, dated June 16, 2010, was a secondary will that dealt only with the deceased’s home. The primary will dealt with the disposition of the rest of her estate except the house. The applicant submits that, as a result of a drafting error, the secondary will omitted a residue clause and duplicated bequests made by Mrs. McLaughlin in her primary will.
3All parties specifically requested that I deal with this matter on documentary evidence. They specifically denied the need for any findings of credibility or a hearing with witnesses.
BACKGROUND
4Much of the background is not in dispute.
5Mrs. McLaughlin passed away on April 23, 2012, at the age of 93.
6Her husband, Thomas James, who died in 1977, predeceased Mrs. McLaughlin. Mrs. McLaughlin and her husband had six children, Thomas, Judith, Daniel, Wayne, Laurie and James.
7James died in 2001. Her five remaining children survive Mrs. McLaughlin.
8After the death of Mr. McLaughlin, Daniel assisted Mrs. McLaughlin with her daily needs, and was named as the estate trustee of all of her wills from 2002 forward.
9Mr. Thomas McLaughlin and Ms. Corrado had no contact with Mrs. McLaughlin for several years prior to her death. They had not spoken to Mrs. McLaughlin for a number of years, and they did not visit her.
10Before executing the wills in question, Mrs. McLaughlin had executed three previous wills in 1991, 1994 and 2002. Mr. Michael J. Walsh drafted all of those wills.
11The 1991 will stated that, after the payment of her liabilities, the residue of Mrs. McLaughlin’s estate should be converted to cash and equally divided amongst all of Ms. McLaughlin’s six children, including Mr. Thomas McLaughlin and Ms. Corrado.
12On October 27, 1994, Mrs. McLaughlin once again retained Mr. Walsh to draft a new will. The applicant’s position is that she explained to Mr. Walsh that she had not spoken to Mr. Thomas McLaughlin and Ms. Corrado for a number of years and had no relationship with them. Mrs. McLaughlin instructed Mr. Walsh to remove Mr. Thomas McLaughlin and Ms. Corrado from her will. Mr. Walsh recorded the instructions in his notes.
13The 1994 will also provided for bequests from Mrs. McLaughlin’s estate that had not been included in the 1991 will. Those bequests were:
To pay to her grandchildren, if alive at the date of her death, the sum of $2,000 each;
To pay to her daughter-in-law, the sum of $5,000; and
To pay to Daniel and Debora McLaughlin the balance remaining in Mrs. McLaughlin’s Royal Bank of Canada account at the date of her death.
14The residue of the estate was to be divided equally between Daniel, Wayne, James and Laurie.
15James’ death in 2002 required another will update by Mrs. McLaughlin. Again, it is the position of the applicant that during a meeting on January 11, 2002, Mrs. McLaughlin again instructed Mr. Walsh that she had no relationship with either Thomas or Judith, and therefore did not want to include them in her will. Mr. Walsh again recorded Mrs. McLaughlin’s instructions in his notes and prepared the 2002 will accordingly.
16The 2002 will, among other things, provided for the same bequests as in 1994 but changed the bequest of $2,000 to be paid to 15 specifically named grandchildren, if alive at the date of her death. It also added another $5000 bequest to another daughter-in-law.
17The dispute really centres on what occurred in 2010. The applicant says that in 2010, Mr. Walsh advised Mrs. McLaughlin that the use of multiple wills could reduce probate taxes payable after her death if a separate will was prepared dealing solely with her house. To enable her estate to obtain that benefit, Mrs. McLaughlin instructed Mr. Walsh to revoke her 2002 will and draw a primary will and a secondary will. The secondary will dealt with the disposition of the house. The primary will dealt with the balance of her estate.
18On May 7, 2010, Mrs. McLaughlin attended a meeting at Mr. Walsh’s office along with her son, Daniel.
19During the meeting, Mr. Walsh confirmed Mrs. McLaughlin’s instructions to exclude Mr. Thomas McLaughlin and Ms. Corrado from her estate. Mrs. McLaughlin confirmed that she had no relationship with Mr. Thomas McLaughlin and Ms. Corrado, and did not want to include them as beneficiaries in her will. Mr. Walsh confirmed all of the other bequests and recorded these instructions in his notes.
20However, when Mr. Walsh drafted the 2010 wills, he inadvertently repeated the bequests to her grandchildren and daughters-in-law in both wills and omitted the residue clause from the secondary will (which dealt with only the house).
21Mrs. McLaughlin executed the 2010 wills on June 6, 2010. The applicant submits that Mrs. McLaughlin executed the 2010 wills without the errors being brought to her attention. As I will discuss later, from the evidence filed, it is difficult to understand how that could have occurred and is an important part of the respondents’ argument.
22The effect of the drafting errors in the secondary will was that the beneficiaries under the primary will could claim an entitlement to two separate bequests, one under the primary estate and another from the secondary estate. Further, the residue of the secondary estate would go by way of intestacy and be equally distributed amongst all five children of Mrs. McLaughlin, including Thomas and Judith and Tracy Ross, the daughter of the deceased son, James, instead of only the three children, Daniel, Wayne and Laurie.
23Finally, as pointed out by the respondents, paragraph 1 is the same in both wills. It reads:
I hereby revoke all wills made before this will, but not the Will made the 16th day of June 2010 to dispose of real property located at 78 Wellington Street East, Brampton, Ontario.
24The effect of that would mean that the primary will – which does not deal with the real property – would be revoked, leaving only the secondary will, causing an intestacy which would result in the estate being divided by all of the children and, perhaps, the children of James.
25After the death of Mrs. McLaughlin, Mr. Thomas McLaughlin and Ms. Corrado filed a Notice of Objection, objecting to the issuance of a certificate of appointment of estate trustee to Daniel on July 12, 2012.
26Further contact between Ms. Corrado and Mr. Walsh led to this application.
POSITIONS OF THE PARTIES
APPLICANT’S POSITION
27The applicant submits that the secondary will fails to carry out Mrs. McLaughlin’s instructions, as the drafting solicitor repeated the bequests from the primary will in the secondary will and omitted the residue clause in the secondary will.
28While the secondary will contains no obvious error or ambiguity on its face, the mistake becomes apparent in light of the surrounding circumstances, which include:
Mr. Walsh’s admission as to the drafting errors in the secondary will.
The evidence of a close, trusting, and loving relationship between Mrs. McLaughlin and the family members listed in the will.
The admitted fact that Mr. Thomas McLaughlin and Ms. Corrado had not spoken to Mrs. McLaughlin for several years.
The 1994 will, the 2002 will, and the primary will all have a residue clause bequeathing the residue of Mrs. McLaughlin’s estate to her children but without any mention of, or any bequests to, Mr. Thomas McLaughlin and Ms. Corrado.
The 1994 and 2002 wills, along with Mr. Walsh’s notes from 1994, 2002 and 2010, confirm that Mrs. McLaughlin had not instructed Mr. Walsh to duplicate the bequests to the beneficiaries listed in the secondary will.
Mrs. McLaughlin gave clear instructions to bequeath to her named grandchildren an equal sum of $2,000 and nothing more.
The only purpose of drafting the primary will and the secondary will was to separate the house from the rest of the estate of Mrs. McLaughlin, so that her estate could benefit by reducing probate taxes on the value of the house.
29The applicant submits that all of these factors support a finding that the secondary will contains drafting errors and fails to reflect Mrs. McLaughlin’s instructions concerning the distribution of the residue of her estate. Mr. Walsh was never instructed to omit the residue clause, without which the remainder of Mrs. McLaughlin’s secondary estate would devolve by way of intestacy, to be shared with Mr. Thomas McLaughlin and Ms. Corrado.
30Further, Mrs. McLaughlin made specific bequests to the beneficiaries listed in the primary will but did not provide instructions to duplicate these gifts in the secondary will. Thus, the repetitive clauses are a result of an inadvertent drafting error.
RESPONDENTS’ POSITION
Ms. Corrado
31Ms. Corrado submits that the application should be dismissed with the effect that the secondary will revokes the primary will. This would result in an intestacy and all of the children would share in the estate.
32Ms. Corrado states that she was not estranged from Mrs. McLaughlin, but removed herself from what she saw as her mother’s dysfunctional relationship with her son, Ms. Corrado’s brother, Daniel. Ms. Corrado deposed that she was guarded and careful not to interfere with that relationship with Daniel, who influenced Mrs. McLaughlin’s daily life. Ms. Corrado was, in fact, estranged from Daniel. Ms. Corrado kept up on matters through her children and sister-in-law and “stood back” to allow Mrs. McLaughlin live her life. In addition, Mrs. McLaughlin and Daniel lived in Brampton, while Ms. Corrado lived in Toronto. As Mrs. McLaughlin and Ms. Corrado both got older, the drive back and forth became arduous for both of them. In the early 1990s, Mrs. McLaughlin inherited substantial funds from her parents. She had new friends and travelled more often than before.
33Ms. Corrado submits that Daniel and his wife knew how to manipulate Mrs. McLaughlin and exclude certain others. She points out that documents show that Mrs. McLaughlin gave monies to Daniel and his wife from time to time. Eventually, she also forgave substantial debts they had with her.
34In Mr. Walsh’s note dated January 11, 2002, there is the following comment: “Thomas and Judith still don’t talk to her (or each other for that matter).” Ms. Corrado does not understand how or why a statement of this nature came about, since it is not necessary and seems hostile. Mrs. McLaughlin knew Ms. Corrado as “Jude” or “Judy” and never would have called her “Judith”.
35Ms. Corrado has many concerns as to how the 2010 will was executed. She points out that in Mr. Walsh’s affidavit under the heading “2010 will”, he does not mention why Mrs. McLaughlin contacted him even though he did in all other notes relating to will appointments for her.
36Mr. Walsh does not mention the reason Mrs. McLaughlin wanted to prepare a new will in 2010. It is highly doubtful to Ms. Corrado that Mrs. McLaughlin went to see Mr. Walsh eight years after her 2002 will to discuss the separation of her house into a separate will to save a small amount of Probate Tax on the house, since she would have had no such knowledge of such a little known procedure. Any such savings on probate taxes would have been minimal in any event, and would not have made it worthwhile to prepare a second will. Mrs. McLaughlin was 91 years old at that time and would not have known anything about this option.
37Ms. Corrado believes that it was Daniel, not Mrs. McLaughlin, who contacted Mr. Walsh in 2010. She believes that Daniel had a self interest from the outset in Mrs. McLaughlin forgiving his various debts to her along with her bank accounts and perhaps other assets in joint tenancy or otherwise.
38Mr. Walsh had Mrs. McLaughlin come to his office escorted and assisted by Daniel, the sole named trustee and main beneficiary of the will. Furthermore, Mr. Walsh’s 2010 notes appear to indicate the words, “mother has changes”, which would suggest that Mr. Walsh was taking his instructions from Daniel.
39At paragraph 16 of Daniel’s affidavit dated February 7, 2013, he states, “[t]he only reason for the creation of a new will was to separate the house from the rest of the assets so that we could take advantage of its first sale after conversion to Land Titles.” The word “we” concerns Ms. Corrado. She believes that Daniel was orchestrating the new will for his advantage and not the benefit of Mrs. McLaughlin.
40No explanation is given by Mr. Walsh or Daniel as to why Mrs. McLaughlin signed and initialled the will when it clearly does not carry out what they suggest were her instructions. Ms. Corrado finds it hard to believe that this large number of people (Mrs. McLaughlin, Mr. Walsh, his secretary and Daniel) could have read this document and not seen the many errors that Mr. Walsh now alleges, especially when Mr. Walsh himself states that Mrs. McLaughlin “read and executed the 2010 wills”.
41It is submitted that if a testator does not object to the actual words in the will, her failure to understand their legal effect would not be a rectifiable mistake. Daniel swears that Mr. Walsh fully explained the clauses in the wills to Mrs. McLaughlin “to ensure that everything was in order”. Mr. Walsh swears that Mrs. McLaughlin read the secondary will. It is submitted that there is no evidence that Mrs. McLaughlin did not approve of the words in the secondary will. If the will was read over by Mrs. McLaughlin and it appeared that she understood it, it should be presumed that she knew and approved of the contents.
42Ms. Corrado points out that Daniel’s wife was once a secretary for Mr. Walsh and therefore Mr. Walsh has a conflict in this matter.
43Ms. Corrado says that the initials on the will do not look like Mrs. McLaughlin’s initials when compared to her other initials. The specific set of initials is very close in proximity to the names of the grandchildren, indicating that Mrs. McLaughlin should have noticed that this same gift was included in both documents. Instead, Ms. Corrado believes that Mrs. McLaughlin did not initial the 2010 wills.
44It is submitted that these are more than errors or mistakes. The applicant and Mr. Walsh want to re-write the entire five page will, and reduce it to two pages. One could not possibly read this purported secondary will and not notice that 15 grandchildren are listed, two daughters-in-law are listed, and there is no residue clause, not to mention that the revocation clause revokes all previous wills, which was allegedly not the intention.
45It is submitted that a will should not be changed, except in the most exceptional circumstance. The words of the secondary will are clear and unambiguous and therefore no extrinsic evidence of Mrs. McLaughlin’s intentions should be introduced. 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 indirect extrinsic evidence of intent.
Mr. Thomas McLaughlin
46Mr. Thomas McLaughlin adopted the submissions of Ms. Corrado and added his own. He acknowledges that he had little contact with Mrs. McLaughlin over the years leading up to the various wills.
47In his submissions, Mr. McLaughlin set out the history of his abuse by his father and mother. He stressed that he wished “this case to be framed in family dysfunction.” He asks me to change the law and return to the proper principles set out in the Wills Act of 1837. Specifically, he asks that I “make history and alter immensely the face and landscape of law in Ontario and probably Canada”. He submits that the estate should be declared intestate and the estate divided in such a way that takes into account the abuse that he has suffered in the past.
48His submissions include 23 requests but ultimately, he seeks a new executor, a criminal investigation of all parties involved, a Royal Commission to investigate this process including the apparent conflicts of interest between the Law Society of Upper Canada, the lawyers involved and the Superior Court of Justice. Finally, he seeks a forensic accounting of what occurred with the estate funds from as far back as the parties’ grandparents through to the applicant’s and on to LawPRO and to “probably the Law Society”.
49Both Mr. Thomas McLaughlin and Ms. Corrado question and object to the involvement of counsel apparently funded by LawPRO in the litigation on the side of the applicant.
LEGAL PRINCIPLES
50The equitable power of rectification is aimed mainly at preventing the defeat of the testamentary intentions due to errors or omissions by the drafter of the will: Robinson Estate v. Robinson, 2010 ONSC 3484, at para. 25.
51In the context of wills, Belobaba J., in Robinson Estate v. Rondel, confirmed that:
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.
52Juriansz J.A. in Robinson Estate v. Robinson, 2011 ONCA 493, leave to appeal to S.C.C. refused, [2011] S.C.C.A. No. 536, explains at paras. 23-24 :
23 … 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.
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.
53In regards to the court correcting errors in a will, Pattillo J. in Lipson v. Lipson, 2009 66904 (ON SC), states at para. 42:
[B]efore 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.
54As Belobaba J. stated in Robinson Estate, at paras. 26-27:
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.
ANALYSIS
55At the outset of the argument, I asked all of the parties if they wished me to make any findings of credibility based on the affidavits. I pointed out to them that it was unlikely that I would be able to do so and if they wished me to do so, there would need to be a trial of an issue with testimony given by some or all of the parties. After taking a break for them to consider that issue, all wished me to proceed with the matter on the paper record. The submissions could not be completed on April 30, 2014, and the motion was adjourned to May 30, 2014. When we returned, no one requested any change to that procedure.
56Thomas McLaughlin spoke eloquently for an extended period of time and produced a great amount of material to support his position. He pointed out that his written response had not been responded to by the Applicant and therefore must be relied on as the truth.
57Unfortunately, his material was not sworn in any fashion and therefore did not need a response. Further, unsworn, it is not something that I can rely upon as evidence.
58Although Thomas McLaughlin requested a number of orders, he brought no cross-application seeking that relief. Without that proper procedure, I can make no orders as requested by him: see Verch v. Weckwerth, 2014 ONCA 338.
59Despite Thomas McLaughlin’s impassioned plea, I am not prepared to change the law on this record. There is no authority in Ontario “for the proposition that a competent testator's autonomous distribution of his or her property as reflected in a properly executed will may be displaced or set aside by the courts in the exercise of their discretion pursuant to some alleged overarching concept of a parent's moral obligation to provide on death for his or her independent, adult children”: Verch, at para. 5.
60If I am satisfied that the will should be rectified as requested, I have no power to change a will to assist members of the family whether they were abused or not.
61Thomas McLaughlin and Ms. Corrado raise concerns and questions relating to their treatment by family members over much of their lifetime; Mr. Walsh’s competence; Daniel’s actions after the death of Mrs. McLaughlin; and the involvement of LawPRO, along with estate law and real estate law in general. Those are, no doubt, a matter of concern and some confusion to them. My role is not to answer all of those but rather to determine if, on the evidence provided to me, there is a basis for the rectification requested by the applicant.
62Ms. Corrado raises a number of concerns and suspicions about the manner in which the wills were signed and steps taken by the executors but she has no evidence contrary to their evidence. I am not persuaded on the basis of the affidavits filed that I can find that the applicant is untruthful.
63Whether Ms. Corrado and Thomas McLaughlin were separated from Mrs. McLaughlin by good reason or bad, their choice or not, there is no dispute that they had not seen Mrs. McLaughlin in some years. That is an important factor which supports her intention to make no bequest to them.
64Ms. Corrado is concerned that Mr. Walsh’s notes in 2010 say that “mother has changes” which would suggest that other changes were to follow and that Daniel was providing instructions. Mr. Walsh answered this question in his cross-examination. There, he said that the note read “nothing has changed” in relation to his 1994 notes. I read those notes the same way that Mr. Walsh does.
65While it is true that Daniel’s wife was once a secretary to Mr. Walsh, it appears to have been in the mid 1970’s and not since. Without more, that does not raise a doubt about his neutrality in providing his evidence.
66In essence, Ms. Corrado raises the issue of suspicious circumstances surrounding the execution of the will. The Supreme Court of Canada in Vout v. Hay, 1995 105 (SCC), [1995] 2 S.C.R. 876 (S.C.C.), explains at p. 888 that the civil standard of proof on a balance of probabilities applies. The evidence must be scrutinized in accordance with the gravity of the suspicion. The Court explains that there are three situations where suspicious circumstances may be raised:
The suspicious circumstances may be raised by (1) circumstances surrounding the preparation of the will, (2) circumstances tending to call into question the capacity of the testator, or (3) circumstances tending to show that the free will of the testator was overborne by acts of coercion or fraud. Since the suspicious circumstances may relate to various issues, in order to properly assess what effect the obligation to dispel the suspicion has on the burden of proof, it is appropriate to ask the question "suspicion of what?" See Wright, supra, and Macdonell, Sheard and Hull on Probate Practice (3rd ed. 1981), at p. 33. (1)
67I do not find suspicious circumstances relating to the preparation of the will. As set out below, the reason for the new wills is explained by the contemporaneous preparation of Daniel and his wife’s wills. While Daniel’s attendance at the signing is unusual, it too is explained by Mrs. McLaughlin needing help with her hearing. Nothing in the proposed will changed his circumstances as a beneficiary and executor from the earlier wills. No one challenges Mrs. McLaughlin’s capacity. There is nothing to suggest, on the basis of the respondents’ arguments that her will was overblown. Indeed, the respondents wish the court to uphold Mrs. McLaughlin’s wishes as set out in the will.
68I therefore proceed to determine, on a balance of probabilities, what occurred based on the materials filed by the applicant.
Why Would Mrs. McLaughlin Bother With Creating Two Wills At Her Age And The Size Of The Estate?
69The answer to this question comes from the transcripts of the cross-examinations. It appears that Daniel and his wife were getting their wills done at the same time and Mrs. McLaughlin was in attendance. Although he does not specifically remember, Daniel believes that the discussion followed from her review of her will and power of attorney.
70While this is a curious question, in the end, nothing turns on it. The reality is that Mrs. McLaughlin came to Mr. Walsh to create the dual wills. No one disputes Mrs. McLaughlin’s competence at the time she signed the wills. No one disputes that there was a benefit to the change. Even if the tax savings were small; even though the benefit might be to the beneficiaries, or that the idea might have been Daniel’s to begin with, the fact remains that two wills were prepared. Mr. Walsh’s notes and evidence along with the evidence of Daniel confirm that. The respondents have no evidence to the contrary. I have no doubt that Mrs. McLaughlin had that intention when she instructed Mr. Walsh to prepare the wills.
71The real question is whether she knew what she was signing when she signed the wills as they were when drafted by Mr. Walsh.
Did Mrs. McLaughlin Know What She Was Signing?
72Both Mr. Walsh and Daniel gave affidavit evidence and were cross-examined on those affidavits. Combined, they say that a very competent Mrs. McLaughlin executed the 2010 wills on June 6, 2010, without the errors being brought to her attention. It is difficult to understand how that could have occurred. Some of the highlights of that evidence are as follows.
73In his affidavit, Mr. Walsh says that Mrs. McLaughlin “attended at my office, read and executed the 2010 wills.” He agreed in his cross-examination that copies of the wills were sent to Mrs. McLaughlin ahead of time. All pages were signed or initialled.
74Daniel, in his affidavit, says that he was at the meeting when the wills were signed and “Mr. Walsh explained to her the benefits of the dual wills and went through the clauses to ensure everything was in order.” In his cross-examination, Daniel testified that he reviewed the wills with his mother at her house before the meeting. She had already opened the letters before he arrived. Together, over a period of 30 to 45 minutes, they went through the clauses. He says that Mr. Walsh reviewed the clauses of “the will” when they met to sign the will. The wills were in front of her.
75I am unable to be sure of the answer here on affidavit evidence alone. It seems possible to me that all parties relied on others to protect their interests. Mr. Walsh left it to his secretary (although the two differ somewhat on their recollection as to who typed the wills) to prepare the wills. His secretary, no doubt, left it to him to review them (and it would be his obligation to do so). Mr. Walsh left it to Mrs. McLaughlin to read them ahead and raise questions. Mrs. McLaughlin and Daniel relied on Mr. Walsh to get it right. All were likely wrong on that.
76Mr. Walsh, in his cross-examination, raised the possibility that they only reviewed one will before signing. That too could explain the error.
77From my review of the wills themselves and the nature of the errors, I can see how the mistakes were missed. Although, as the respondents submit, the effect of the requested rectification would be to reduce a five page will to a two page will, that would not be something that Mrs. McLaughlin would know to question. Whether prepared by Mr. Walsh or his assistant, the wills would have been prepared by “cutting and pasting” and items could innocently and improperly be duplicated or deleted. Those are some of my conjectures on all of the evidence.
78Of greater importance is the fact that the residue clause was left out and the first paragraph was duplicated. That is rather stark evidence that Mr. Walsh did not read the document before it was signed. He could not have reviewed those paragraphs with Mrs. McLaughlin despite his and David’s recollection.
79Ultimately, the answer to this question is resolved in considering the balance of probabilities of what must have occurred. Finding that Mrs. McLaughlin read and knew what she was signing and intended the result that would occur would not make sense given the balance of the evidence that I know is correct or is conceded. If I accept that she meant what she signed, then I must find that she meant to create the intestacy even though the document that created the intestacy also duplicated the bequest to her grandchildren and daughters-in-law. I would have to find that in one document, Mrs. McLaughlin wanted to duplicate the bequests, revoke a second document being signed at the same time and create an intestacy that effectively shared the entire estate with all of her children rather than do that directly. That would make no sense. There is no evidence that would suggest that that was her intent.
Balance Of Probabilities
80There was no benefit to Mr. Walsh and Daniel to draft the will as it was. If, as suggested by Ms. Corrado and Thomas McLaughlin, they were overbearing Mrs. McLaughlin for some purpose, they were both better off with the will as it was. Mr. Walsh would not be admitting to negligence in this particular matter; Daniel would be getting a bigger share of the estate. There is no self-interest involved in the evidence of Mr. Walsh.
81There was no benefit to Mrs. McLaughlin to orchestrate this subtle intestacy when she could have been as express in her wishes as she had in the past. She had added and removed beneficiaries in the past without hesitation; she could still do that now.
82The effect of leaving out the residue clause would lead to intestacy and I should avoid that.
83Over a number of wills, Ms. Corrado and Thomas McLaughlin had been left out as beneficiaries. Mr. Walsh’s notes confirm that Ms. Corrado and Thomas McLaughlin do not dispute that there had been no contact for many years. There is no evidence that would suggest that Mrs. McLaughlin had changed her view of their bequests.
84There is no evidence that Mrs. McLaughlin wished to benefit the legatees with duplicate bequests.
85When reading the will, the lack of a residue clause, makes it clear that a mistake has occurred.
86I find that on all of the evidence, this is one of those exceptional cases that require a rectification of the will as signed by Mrs. McLaughlin.
87On that basis, I find that the clerical error of Mr. Walsh has created a document that does not reflect the wishes of Mrs. McLaughlin. Creating an intestacy would not make sense in accordance with rest of the surrounding circumstances. Based on all of the prior wills and supporting documents, the proposed corrections would give effect to what is consistent with Mrs. McLaughlin’s intentions. Those corrections are to paragraphs 1 and 3 of the secondary will.
RESULT
88I am satisfied that Mrs. McLaughlin’s instructions were not carried out as a result of the clerical error within the office of Mr. Walsh. The will as drafted as Schedule A to the application accurately sets out the intentions of Mrs. McLaughlin.
89Accordingly, I order, nunc pro tunc, that the secondary last will of Elizabeth Anne McLaughlin dated June 16, 2010, shall be rectified in the form attached to schedule A to the Notice of Application in this matter.
COSTS
90If the applicant seeks costs of the application, he shall provide written submissions within 15 days of this order. Ms. Corrado and Thomas McLaughlin shall provide their response within 15 days thereafter. All submissions will be no more than five pages not including any offers to settle or bills of costs.
Lemon, J.
Released: July 8, 2014
COURT FILE NO.: CV-13-0710-00
DATE: 2014-07-08
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Daniel McLaughlin, Estate Trustee of the Estate of Elizabeth Anne McLaughlin
Archie J. Rabinowitz, Deepshikha Dutt, Dean Allison, Counsel for the Applicant
- and –
Wayne McLaughlin, Laurie Maveal, Thomas McLaughlin, Michael Corrado,
Tiffany Sloboda, Ryan McLaughlin, Leonard Corrado, T.J. McLaughlin, Christopher Corrado, Ian McLaughlin, Mark McLaughlin, Joanna McLaughlin, Sarah McCullagh, Tracy Ross, Lee McLaughlin, Joanna McLaughlin, Cameron Maveal, Alexander Maveal, Spencer Maveal, Joy McLaughlin, Denise McLaughlin and
Judith Corrado
Thomas McLaughlin, In Person
Judith Corrado, In Person
Respondents
REASONS FOR JUDGMENT
Lemon, J.
Released: July 8, 2014
