SUPERIOR COURT OF JUSTICE - ONTARIO

OSHAWA COURT FILE NO.: 80242/12

DATE: 20140923

RE: Kathleen Budai (Applicant)

And

Susan Milton, personally and as Executrix of the Estate of Vairis Berzins (Respondent)

BEFORE: Salmers J.

COUNSEL:
C. Still, for the Applicant
E. Upinieks, for the Respondent

ENDORSEMENT

Introduction

[1] The issues in this motion are the validity of three clauses in the will of the deceased, Vairis Berzins. Mr. Berzins died July 24, 2012. The will is dated February 12, 2012. The clauses in question are 6.1, 6.2, and 6.3. Those clauses are as follows:

6.1 Should my beneficiary, Kathy Budai challenge this Will or my choice of Executrix in any way then she will be removed from the Will and not inherit anything.

6.2 Should Kathy Budai (my paid care giver) break her promise to me and place me back into the hospital for any reason then she will not inherit anything. Should any form of machine or treatment be used to prolong my life against my wishes then she will inherit nothing. Should she be investigated or charged with any inappropriate care during my last days or death the she will receive nothing. It is my decision that this hospital visit is to be my last. I have chosen to pass away in my home without any further attempt to keep me alive. Kathy Budai has agreed to this action. Absolutely no action is to be taken to prolong my life and suffering.

6.3 Should the estate have holdings due to my beneficiary not honouring my final wishes to pass away without any further efforts to prolong my life then the Executrix shall be in the control of distribution of the Estate. She may give away the funds in any way she sees fit. She may invest the balance of the Estate and use it for donations or any other purpose as long as the funds last. There are no restrictions to what she may do with the balance of the Estate.

[2] The will was prepared by the respondent who is a retired financial planner. It is a terribly drafted will and a perfect example of why untrained people should not attempt to undertake complicated matters on behalf of other people. If Mr. Berzins had gone to a competent lawyer, I doubt that there would have been the many problems that have occurred to date with respect to his will. The problems arise from the terribly drafted will.

[3] The applicant is the sole beneficiary of the will. However, if any of the impugned clauses are valid, the applicant is to receive nothing. Further, if clause 6.3 is found valid, then the respondent “shall be in the control of distribution of the Estate”, and essentially she can do whatever she wants with the Estate. The will does not speak of what will happen if the applicant breaches other parts of 6.1 and/or 6.2, other than that the applicant will not inherit anything.

[4] Both parties filed affidavits that disparaged the other side. However, based on the wording of the entire will and interpreting those words in their ordinary sense, I am convinced that the testator’s intention can be discerned from the will itself. Therefore, it is unnecessary for me to look at evidence of surrounding circumstances. In any event, notwithstanding the fact-finding powers available to me, I am unable to determine the accuracy of the disparaging comments simply by referring to the affidavits and other evidence before me. Accordingly, I have made this ruling based on interpreting the wording of the entire will and interpreting those words in their ordinary sense without reference to outside circumstances and without making any determination on the accuracy of the disparaging allegations.

Paragraph 6.1 of the Will

[5] The applicant submitted that paragraph 6.1 should be struck out for being void as contrary to public policy on the basis of the in terrorem doctrine.

[6] Both parties agreed that in order for the doctrine of in terrorem to apply, three requirements must be met:

(a) the legacy must be of personal property or blended personal and real property;

(b) the condition must be either a restraint on marriage or one which forbids the donee to dispute the will; and

(c) the “threat” must be “idle.”

[7] Pursuant to the will, the applicant is the sole beneficiary of the deceased’s estate. Accordingly, requirement (a) of the in terrorem doctrine is satisfied. The respondent argued otherwise, but that does not make any sense and I reject the respondent’s argument in this regard.

[8] Paragraph 6.1 forbids the applicant from disputing the will. Firstly, the will does not restrict what type of challenges to the will are forbidden. The plain reading of the will is that all types of challenges to the will are forbidden. Secondly, I disagree with the interpretation suggested by the respondent that the words “in any way” are meant only to apply to challenges to the choice of executrix. The words “in any way” could equally be read in their ordinary sense, as contained in the sentence, as applying to both challenges to the will and challenges to the choice of executrix. If read and interpreted in this way, the inclusion of the words “in any way” make it clear that there is no intention that there be any provision to allow for any litigation whatsoever against the estate. For these reasons, I am satisfied that the testator’s intention can be discerned from the will and that his intention was to forbid any litigation whatsoever against his estate. Accordingly, requirement (b) of the in terrorem doctrine is satisfied.

[9] The third and last requirement of the in terrorem doctrine is that the threat must be idle. Both parties rely on Kent v. McKay[^1], which states,

The “threat” must be “idle”; that is the condition must be imposed solely to prevent the donee from undertaking that which the condition forbids. Therefore a provision which provides only for a bare forfeiture of the gift on breach of the condition is bad.[^2]

[10] Paragraph 6.1 provides for a bare forfeiture of the gift to the applicant if she breaches a condition provided in the paragraph. There is no provision for a gift over or a different disposition which can render such clauses valid.[^3] Accordingly, the third and last requirement of the in terrorerm doctrine is satisfied.

[11] For these reasons, all three requirements of the in terrorem doctrine have been satisfied. Paragraph 6.1 is declared to be void as contrary to public policy.

Paragraph 6.2 of the Will

[12] The applicant argued that three conditions subsequent in this paragraph should be found to be void for uncertainty. The applicant also argued that the third impugned condition subsequent should be declared void as contrary to public policy.

[13] The first impugned condition subsequent was, “Should Kathy Budai (my paid care giver) break her promise to me and place me back into the hospital for any reason then she will not inherit anything.” The applicant submitted that this condition subsequent was uncertain. I disagree.

[14] It is unnecessary to be able to determine the alleged “promise” of Ms. Budai. The sentence is quite clear. If Ms. Budai takes any steps with a view or likelihood that Mr. Berzins would return to the hospital, then she would be disentitled. At any time, a court could receive evidence and then determine whether: 1) Ms. Budai took any steps with a view or likelihood that Mr. Berzins would return to the hospital; and 2) whether Mr. Berzins returned to the hospital as a result of those steps. There is no uncertainty. Accordingly, the first impugned condition subsequent will not be found void for uncertainty.

[15] The second impugned condition subsequent was, “Should any form of machine or treatment be used to prolong my life against my wishes the she will inherit nothing.”

[16] There is no uncertainty in this clause. It is clear that the testator did not wish for any means to be used to prolong his life contrary to his wishes. At any time, a court could receive evidence and then determine: 1) whether a machine was used to prolong the testator’s life; 2) whether treatment was used to prolong the testator’s life; and 3) whether the treatment or the use of the machine was contrary to the testator’s wishes.

[17] The applicant argued that the use of the word “treatment” created uncertainty. I disagree. Reading the entire will, and giving the words their usual meanings, it is clear that the testator did not wish for any means to be used to prolong his life contrary to his wishes. All treatment whatsoever was forbidden. Counsel for the applicant asked whether that included “herbal remedies and supplements such as MMS”. The answer is “yes” because the testator would be given those remedies or supplements as treatments.

[18] The applicant also argued that there was uncertainty as to whether she would be disentitled even if she did not administer the treatment. Again, I disagree that there is uncertainty. In paragraph 6.3, the testator refers to his “beneficiary not honouring my final wishes to pass away without any further efforts to prolong my life” which clearly relates to the condition subsequent included in paragraph 6.2. In the context of the will, to “honour” means to “follow”, showing that the testator intended for the applicant to become disentitled only if she caused means to be used to prolong the testator’s life contrary to his wishes. There is no uncertainty.

[19] Finally, the applicant argued that there was uncertainty about the meaning of “prolong my life.” Obviously, this means to extend his life or to try to keep him alive. There is no uncertainty.

[20] For the above reasons, I find that there is no uncertainty in the second impugned condition subsequent and it will not be found void for uncertainty.

[21] The third impugned condition subsequent was, “Should she be investigated or charged with any inappropriate care during my last days or death then she will receive nothing.” The applicant argued that this clause should be found to be void for uncertainty and as contrary to public policy.

[22] The applicant first argued that there was uncertainty of the meaning of the words, “during my last days.” I disagree. After a person’s death, a court is capable of hearing evidence about his condition and determining what were “his last days”.

[23] The respondent argued that the clause is valid and that any investigation or charges, regardless of outcome, relating to inappropriate care disentitles the applicant. I disagree.

[24] The respondent’s position contemplates that frivolous or false allegations could serve to disinherit a beneficiary. That result would not be the intention of any testator. Further, it does not make sense that a frivolous allegation, without any basis whatsoever, that results in an investigation or charges, could disentitle a beneficiary. If that were to be the case, then any person, who might benefit as a result of the disentitlement, could make or arrange to have false allegations made against the beneficiary with a view to instigating an investigation or charges. This is contrary to public policy. It is not in the interest of the state for people to be making false allegations about others. False allegations can: 1) cause needless use of state resources for investigation and prosecution; 2) harm, sometimes very seriously, the person against whom a false allegation is made; and 3) serve to defeat the wishes of a testator if made in connection with an estate.

[25] For these reasons, I find that the third impugned condition subsequent of paragraph 6.2 is declared void as being contrary to public policy.

Paragraph 6.3 of the Will

[26] The applicant did not specifically argue that paragraph 6.3 was uncertain. In her argument about paragraph 6.2, the applicant submitted that the words “prolong my life” were uncertain. I rejected that submission. Accordingly, if the applicant had made the same submission with respect to those same words in paragraph 6.3, I would have rejected the submission for the same reasons as with respect to paragraph 6.2.

[27] Rather than uncertainty, the submission of the applicant was based on the facts that the respondent prepared the will and is a potential beneficiary. Accordingly, the applicant argued that paragraph 6.3 should arouse suspicion, therefore putting the onus on the respondent to prove that the testator knew and approved of the contents of the will. The applicant relied on Lakevold v. Simank, [1990] BCJ No. 2390 (B.C.S.C.) in support of this position.

[28] The respondent submitted that suspicion should not be aroused simply because she prepared the will and is a beneficiary. In support of this position, the respondent cited the following cases: Verck v. Weckwerth, [2013] O.J. No. 2623 (Ont. S.C.J.); Scott v. Cousins, [2001] O.J. No. 19 (Ont. S.C.J.); and MacGregor v. Martin Estate, 1965 17 (SCC), [1965] S.C.R. 757.

[29] I agree with the applicant that suspicion is aroused by the facts that the respondent prepared the will and is a potential beneficiary.

[30] The applicant asked me to find that paragraph 6.3 is void or invalid. However, with respect to paragraph 6.3, all of the cases cited by both counsel dealt with whether a will should be set aside because of fraud or undue influence or because the testator did not know and approve of its contents. No authority was cited to me for setting aside a single clause in a will based on the fact that clause arouses suspicion. It may be that the validity of the will itself is cast into question by the suspicion aroused by paragraph 6.3. No other reason was argued as a basis to find that paragraph 6.3 was invalid. Uncertainty of paragraph 6.3 was not argued and I do not find it to be uncertain.

[31] The applicant did not submit that the entire will should be found invalid. However, the applicant did not provide me with any authority for finding only paragraph 6.3 to be invalid because of aroused suspicion. I am not satisfied that suspicion about circumstances surrounding the making of the will is sufficient to render one particular part of the will to be void or invalid while allowing some or all of the will to remain in full force and effect. Accordingly, with respect to paragraph 6.3, the applicant has not discharged her onus on this motion and paragraph 6.3 will not be found to be invalid.

Summary

[32] For all of the above reasons:

a) paragraph 6.1 is declared void as contrary to public policy;

b) the third impugned condition subsequent of paragraph 6.2 is declared void as being contrary to public policy. To be precise, the condition subsequent being declared void is: “Should she be investigated or charged with any inappropriate care during my last days or death then she will receive nothing.” Apart from that condition subsequent, the applicant has not satisfied me that any other parts of paragraph 6.2 are void or invalid; and

c) the applicant has not satisfied me that paragraph 6.3 should be declared void or invalid.

[33] If the parties cannot agree on costs, then they are to contact the Oshawa trial coordinator to schedule an appearance before me to make costs submissions.

Order to go accordingly.

Salmers J.

DATE: September 23, 2014

Footnotes

[^1]: 1982 788 (BCSC); [1982], 139 D.L.R. (3d) 318 (B.C.S.C.).

[^2]: ibid, at paragraph 11.

[^3]: James MacKenzie and Thomas Feeney, Feeney’s Canadian Law of Wills, 4th ed., (Toronto: Butterworths, 2012) at s. 16.62.