Court File and Parties

COURT FILE NO.: CV-13-0710-00 DATE: 2015-06-30 CORRECTED: 2015-07-28

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

DANIEL McLAUGHLIN, Estate Trustee of the Estate of Elizabeth Anne McLaughlin Applicant

• and -

THOMAS McLAUGHLIN and JUDITH CORRADO Respondents

• and -

MICHAEL J. WALSH Intervenor

Counsel: R. Dean Allison, for the Applicant Self-represented, Respondents Archie Rabinowitz, for the Intervenor, Michael J. Walsh

HEARD: June 18, 2015, at Brampton, Ontario

Justice David Price

Reasons For Judgment

Corrected Decision: The text of the original judgment was corrected on July 28, 2015, and the description of the correction is appended.

Correction: In para. 43 the name of the author “Richard Freeman” is corrected to “C.D. Freeman”.

NATURE OF PROCEEDING

[1] Daniel McLaughlin applies for a certificate of his appointment as estate trustee with a will for the estate of his mother, Elizabeth Anne McLaughlin (“Ms. McLaughlin”). Ms. McLaughlin changed her will in 2010 by executing two wills at that time:

a) The secondary will, which was not to be submitted for probate, and which dealt solely with her house, being her major asset; and

b) The primary will, which was to be submitted to probate, and which dealt with the remainder of her estate.

[2] The primary Will left Ms. McLaughlin’s estate to her three youngest children. It made no provision for her eldest two children, from whom she was estranged.

[3] Justice Lemon, in a ruling on July 8, 2014, found that it was likely that neither Ms. McLaughlin nor her lawyer, Michael Walsh, who drafted the 2010 Wills, read the secondary will, as they both failed to detect obvious errors in it. He rectified the secondary will, by excising a clause that revoked all previous wills, and by importing from the primary will a clause which disposed of the residue of the estate among Ms. McLaughlin’s three youngest children. Justice Lemon did not make any determination as to the validity of either of the 2010 wills.

[4] This court invited Mr. Walsh to make submissions on whether the court is precluded by Lemon J.’s ruling from making a determination as to the validity of the 2010 wills and as to whether, if it is not so precluded, it is bound by Lemon J.’s findings of fact to find that the secondary will is invalid.

[5] Mr. Walsh’s solicitor, Archie Rabinowitz, to whom Daniel McLaughlin’s lawyer deferred at the hearing, acknowledged that the court is not precluded from requiring the 2010 wills to be proved “in solemn form”, that is, by the calling of witnesses, in order to determine whether Ms. McLaughlin read and approved their form and content. He argued that the court should not be bound by Lemon J.’s findings of fact in making its determination as to the validity of the wills.

[6] For the reasons that follow, I have concluded that the court is bound by Lemon J.’s findings of fact, and must conclude, based on his findings, that the secondary will is invalid. The court will issue directions for a hearing to require the primary will to be proved in solemn form, so that the court can make a determination as to its validity.

BACKGROUND FACTS

[7] The background facts are set out in my reasons dated June 1, 2015, and will not be repeated at length here. I will highlight the facts that have particular relevance to my determination of the issues that are now being addressed.

[8] Ms. McLaughlin gave birth to six children over the course of fifteen years: In the order of age, from eldest to youngest, they were: Thomas, Judith, Wayne, James, Daniel, and Laurie. James predeceased Ms. McLaughlin, who died April 23, 2012, when she was 93 years old.

[9] Ms. McLaughlin’s lawyer, Michael Walsh, drafted two wills for Ms. McLaughlin in 2010: a primary will, dealing with all assets except for real property (“the primary will”), and a secondary will, dealing with the disposition of Ms. McLaughlin’s home at 78 Wellington Street East, Brampton (“the house”). I will refer to the latter will as “the secondary will”, and will refer to the two wills, collectively, as “the 2010 wills”.

[10] Mr. Walsh attested to the execution of the 2010 wills by Ms. McLaughlin on June 16, 2010. Ms. McLaughlin executed the wills in Mr. Walsh’s office while her youngest son, Daniel McLaughlin, and Daniel’s wife, Debora, were in attendance. The 2010 wills name Daniel as estate trustee.

[11] When Mr. Walsh drafted the secondary will, disposing of the house, he inadvertently repeated in that will the bequests that were made in the primary will to Ms. McLaughlin’s grandchildren and daughters-in-law, and he omitted a clause disposing of the residue of the estate. The primary will, disposing of Mrs. McLaughlin’s estate apart from real estate, revoked all previous wills except the will disposing of the house. Paragraph 1 is the same in both Wills and reads:

I hereby revoke all Wills made before this Will, but not the Will made the 16^th day of June 2010 to dispose of real property located at 78 Wellington Street East, Brampton, Ontario.

[12] On July 12, 2012, Mr. Walsh filed an application on behalf of Daniel McLaughlin for a certificate of his appointment as estate trustee of the primary will. On the same date, Mr. Walsh filed a transfer of the house from Ms. McLaughlin to Daniel McLaughlin as her estate trustee, although no application had been filed for a certificate of his appointment of the will which disposed of the house.

[13] On July 13, 2012, Judith Corrado attended at the court house in Brampton and filed a Notice of Objection on behalf of her and her brother, Thomas McLaughlin, to Daniel’s appointment as estate trustee. Upon filing their Notice of Objection, Thomas and Judith received a copy of the “primary will” only, as it was the only will that had been filed for probate. That will disposed of the testatrix’s assets other than her home. Judith additionally received documents filed with the court up to that date in relation to the probate of the primary will. A court clerk informed her that only the primary will was on file at the court house, but that there was another 2010 will, being the secondary will.

[14] Ms. Corrado states that Mr. Walsh would not allow her to attend at his office to discuss the secondary will, and that his secretary advised her to “get a lawyer”. On August 2, 2012, Judith received a copy of the “secondary will” from a lawyer she consulted, who received it from Mr. Walsh. She also received copies of earlier wills that her mother, the testatrix, was said to have executed in 1991, 1994, and 2002, respectively.

[15] The 1991 will provided that the estate residue was to be equally distributed among the testatrix’s six children. The 1994 Will:

(i) removed Thomas McLaughlin and Judith Corrado as beneficiaries who would share in the residue of the estate:

(ii) made specific bequests to the testatrix’s grandchildren; and

(iii) added a clause forgiving all of the testatrix’s children’s debts.

[16] The 2002 Will:

(i) removed the testatrix’s son, James McLaughlin, as a beneficiary, as he had died;

(ii) removed Wayne McLaughlin as one of the estate trustees; and

(iii) provided a specific bequest to Wayne McLaughlin’s wife, Denise McLaughlin, who was the testatrix’s daughter-in-law.

[17] According to evidence that Mr. Walsh gave in his affidavit and in his cross-examination on his affidavit, the 2010 wills were created, at his own suggestion, primarily for the purpose of estate planning, to decrease the estate administration tax payable upon the testatrix’s death, by dealing with her real property in a separate will from the rest of her assets. The 2010 wills also removed reference to a Royal Bank of Canada account, which was to be distributed to Daniel and Debora McLaughlin, and removed a clause dealing with forgiveness of a debt that Daniel and Debora McLaughlin owed to Ms. McLaughlin.

[18] Mr. Walsh stated that upon meeting with Ms. McLaughlin on May 7, 2010, to discuss the proposed changes to her will, he explained the concept of dual wills and confirmed the bequests and the individuals who would be sharing in the residue of her estate. He confirmed that Thomas McLaughlin and Judith Corrado were to continue to be left out of the testatrix’s estate, noting on his instruction sheet in 2010 that “nothing has changed” in that regard.

[19] Daniel McLaughlin testified at his cross-examination that the testatrix reviewed the draft 2010 wills with him over lunch. Together, they identified the specific changes that generated the 2010 wills, being the clauses that separated the house from the remainder of Ms. McLaughlin’s assets. The testatrix, according to Daniel, did not raise any concerns at that time.

[20] I am unable to conclude from Daniel McLaughlin’s testimony that Ms. McLaughlin read or approved the contents of the 2010 wills. Daniel has a direct pecuniary interest in the dispositions provided for in the 2010 wills, and his evidence regarding his conversation with his mother is uncorroborated by any independent and impartial witness.

[21] Ms. McLaughlin executed the 2010 wills on June 16, 2010, at Mr. Walsh’s office. The meeting, according to Mr. Walsh and Daniel McLaughlin, lasted 30 to 45 minutes, during which time Mr. Walsh says he confirmed the prior discussions and the testatrix’s instructions.

[22] The secondary will contained mistakes. Specifically, it revokes all previous wills except the secondary will itself, it replicates the bequests made in the primary will, and it omits a clause disposing of the residue. Although Mr. Walsh’s earlier recollection, according to his affidavit, was that both of the 2010 wills were read to the testatrix on the day she attended to execute them, upon cross-examination, he recalled that only one of the 2010 wills must have been read and reviewed by her that day. He does not recall which of the 2010 wills was read, but he concluded that it must have been the primary will, which did not contain any mistakes.

[23] Ms. Corrado had no knowledge of the contents of the secondary will before receiving it on August 2, 2012, although she had a potential benefit in the estate as the secondary will, on its face, could have resulted in a partial intestacy, by failing to dispose of the remainder of the proceeds of sale of the house, after payment of specific bequests in the will, which amounted to $40,000.

[24] The secondary will, which dealt with the house, revoked all wills made before it. It appointed Daniel McLaughlin as estate trustee, with power to sell the house, on trusts to convert the estate into money, and to pay the sum of $2,000 to each of fifteen grandchildren and $5,000 to each of her two daughters-in-law. As noted above, there was no clause in that will disposing of the residue of the estate.

[25] Mr. Walsh sent a letter to Daniel McLaughlin on August 20, 2012, in which he stated, “I recommend that you do not apply for this order [for directions] at this point but wait 30 days when it is possible that the objectors can bring this motion.” On November 22, 2012, Mr. Walsh advised Thomas McLaughlin and Judith Corrado that he had contacted his professional indemnity insurers, LawPRO, and “was unable to do anything further on this file.”

[26] On February 28, 2013, Thomas McLaughlin and Judith Corrado received an application for rectification of the secondary Will from FMC Law (now Dentons), on behalf of Daniel McLaughlin. The covering letter identified Daniel McLaughlin as “the named beneficiary in Ms. McLaughlin’s Primary and Secondary Will”. It identified Dean Allison as Daniel McLaughlin’s lawyer, and Mr. Rabinowitz, of FMC Law, as Mr. Allison’s agent.

[27] On March 30, 2014, Ms. Corrado delivered a withdrawal of her Notice of Objection dated July 12, 2012. While she continues to support the objection filed by her brother, Thomas McLaughlin, to the appointment of Daniel McLaughlin as estate trustee, and has provided an affidavit for Thomas’ use in the proceeding, she has stated that, for personal reasons, she wishes to be relieved of the responsibility of continuing to participate as a party to the proceeding. In the affidavit which she provided in support of Thomas’ Notice of Objection, she states, “I am long past tired of the workload I carry on my shoulders re this “will” matter. It has cost me dearly in more ways than one.” Additionally, she states:

I filed the Notice of Objection in [sic] July 13, 2012, in good faith and in order to uncover the name of my mother’s lawyer. It turns out I was correct, as Daniel was not capable of assisting my mother to ensure her Will was prepared as she may have wanted. Also, he stated in cross-examination that he never read her Will(s) before or after her demise… to ensure their viability at probate, as any ‘Estate Trustee’ must do.” He never notified myself or Thomas re the Will contents, but left it to my youngest sister to do orally. She, in turn, did not seem to have received a copy of either 2010 Wills [sic] and took Daniel’s word that she was included as a beneficiary. How would he know if he never read the Will(s).

[28] Justice Lemon, in reasons dated July 8, 2014, acceded to Daniel McLaughlin’s application to rectify the secondary will. Lemon J. was not asked to make a determination as to whether the secondary will was valid and he did not make a determination in that regard. However, after a full hearing on the issue of rectification, he found that the testatrix never read the secondary will and that it was not read to her. He stated:

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.

Ultimately, 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.[^1] [Emphasis added]

[29] Notice of the present hearing was given to Ms. Corrado, based on the fact that she is a child of Ms. McLaughlin and, as such, has a potential interest in the estate in the event that any part of it is found to be subject to an intestacy or partial intestacy. Additionally, notice of the hearing was given to Mr. Walsh, based on the fact that he prepared the 2010 wills, and the hearing could have an impact on his professional liability to Ms. McLaughlin’s estate.

ISSUES

[30] Daniel McLaughlin’s application for a certificate appointing him as estate trustee of his mother’s estate with a will, which his eldest brother, Thomas McLaughlin, opposes, requires the court to determine the following preliminary Issues at this time:

a) Does Justice Lemon’s ruling dated July 8, 2014, rectifying the secondary will, preclude this court from requiring the 2010 wills to be proven in solemn form?

b) May this court require the 2010 wills to be proven in solemn form, despite the fact that a notice of objection was filed only in relation to the primary will, being the only will that was submitted for probate?

c) Should this court be bound by Lemon J’s findings as to whether Ms. McLauglin, the testatrix, read and approved the secondary will?

d) Is the secondary will valid?

e) Is the primary will valid?

POSITIONS OF THE PARTIES

[31] Daniel McLaughlin and Mr. Walsh acknowledge that the rectification of the secondary will by Lemon J. does not preclude the court, on its own motion or at the request of Thomas McLaughlin, from making a determination as to the validity of that will. They submit that the court should not be bound, in this determination, by Lemon J.’s findings that Ms. McLaughlin never read or approved the secondary will. They argue that the evidence concerning the deceased’s instructions to Mr. Walsh, without evidence that the will was read by her, or to her, is sufficient to enable the court to determine that the secondary will is valid.

LAW AND ANALYSIS

a) Does Justice Lemon’s ruling dated July 8, 2014, rectifying the testatrix’s secondary will preclude this court from requiring the 2010 wills to be proven in solemn form?

[32] When this hearing occurred as directed in my reasons dated June 1, 2015,[^2] I asked counsel for the applicant, Daniel McLaughlin, and counsel for Mr. Walsh, the drafting solicitor, whether I had jurisdiction to hear this matter. My primary concern was that Lemon J’s order dated July 8, 2014,[^3] rectifying Ms. McLaughlin’s secondary will, may have implicitly determined the validity of the secondary will, and that any determination I might make as to the validity of that will could be construed as a review of Lemon J’s Order, which would be inappropriate.

[33] In my previous reasons, I stated that Lemon J. held a trial on the issue of rectification. This was an inaccurate statement, in that Justice Lemon heard an application by Daniel McLaughlin, as estate trustee, in which he and Mr. Walsh, the drafting solicitor, tendered affidavits and were cross-examined on their affidavits. At the hearing before Justice Lemon, both parties consented to his hearing the application based on the evidentiary record before him, including the transcripts of the cross-examinations, despite that fact that he would be unable to make findings of credibility based on viva voce testimony.[^4]

[34] There is no issue as to Ms. McLaughlin’s testamentary capacity. The determination as to whether the secondary will is valid depends on whether Ms. McLaughlin understood and approved of its contents. In making this determination, nothing turns on credibility, as Mr. Walsh himself admits that he likely did not review the secondary will himself, or review it with Ms. McLaughlin.

[35] Mr. Rabinowitz, as counsel for Mr. Walsh, acknowledged that I am not precluded by Lemon J.’s order from making a determination as to the validity of the secondary will. He acknowledged that rectification of a will, and proving a will in solemn form, are separate matters, and that I would not implicitly be reviewing the correctness of Lemon J.’s decision by making a determination as to whether the secondary will is valid. Counsel for Mr. Daniel McLaughlin also did not object to my making a determination as to the validity of the secondary will.

[36] Based on the jurisprudence that follows, I agree that the determination as to whether the secondary will should be rectified was distinct from a determination as to whether that will is valid, and that Justice Lemon’s decision to rectify the secondary will does not preclude this court from requiring that will to be proven in solemn form and determining whether it is valid.

[37] In Robinson Estate v Rondel, in 2010, Belobaba J. explained the doctrine of rectification as follows:

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.

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…

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.[^5]

[38] Proving a will in solemn form demands that the propounder of the will prove in open court the testamentary capacity of the testator, the testator’s knowledge and approval of the contents of the will, and the testator’s due execution of the will. The propounder is aided by a rebuttable presumption, arising upon proof that the will was duly executed, with the requisite formalities, after the testator read or was read the will, and appeared to understand it, that the testator knew and approved of the contents and had the necessary testamentary capacity.[^6]

[39] Rectification is concerned with correcting the drafting errors of the will, whereas the proving of a will in solemn form concerns the validity of the will. These issues are substantively different, and I am therefore satisfied that I would not, in effect, be reversing Lemon J.’s decision as to rectification of the secondary will should I find that will to be invalid.

b) Can this court require the secondary will be proven in solemn form despite the fact that the application before the court is solely for the issuance of a certificate of appointment of estate trustee in relation to the primary will?

[40] Before considering the basis for this court’s jurisdiction to require the secondary will to be proven in solemn form, it is useful to review the implications of having a will proven in solemn form, as distinct from common form.

[41] In Romans Estate v Tassone, in 2009, Savage J, of the British Columbia Supreme Court, explained the practical implications of having a will proved in solemn form. In particular, he noted that having a will proved in solemn form allows the principle of res judicata to apply to the will’s validity. Savage J stated:

Often proof of a will in common form is all that is required for the administration of an estate where there is a will. Proof in common form, however, does not conclusively determine the will to be the valid last will of a person.

Proof of the will in solemn form provides some protection for the will, in that it will not later be set aside, unless obtained by fraud or a later will is found: Tristam & Cootes Probate Practice (27th Edition, 1989, p. 572. As noted by the authors of the British Columbia Probate & Estate Administration Manual, 2nd Edition, 2008 Update, at p. 18-17, “[t]he safeguarding effect of a grant in solemn form is an application of the principle of res judicata to what is a judgment in rem”.[^7]

[42] I invited submissions from counsel as to whether, on my own accord, I could require the secondary will to be proven in solemn form, despite the absence of an application for a certificate of appointment of estate trustee in relation to that will, or of a notice of objection filed in relation to that will. Mr. Rabinowitch acknowledged that it was within my jurisdiction to do so, and Mr. McLaughlin’s counsel, Mr. Dean, did not dispute Mr. Rabinowitch’s position in that regard.

[43] As I stated in my reasons dated June 1, 2015, a superior court sitting as a probate court may take an inquisitorial approach considering extrinsic evidence to determine if there is an issue with the validity of a will. I stated, in that regard:

In Otis v Otis, Cullity J. described the role of a Superior Court sitting as a probate court. The jurisdiction of the Superior Court in probate matters is inquisitorial. It makes no difference that there is no claim or that there is a consent, where the Court finds, based on the evidentiary record, that the testator’s intentions have not been carried out. Its obligation is to protect the testator who is deceased and unable to speak for himself or herself.

There are three principal reasons why a Court sitting as a probate court may undertake a consideration of the validity of a Will where it has not been invited to do so:

1. The Court must take care to give effect to a testator who is no longer alive. Unlike any other proceedings in civil litigations where all the parties are before the Court, in Estate matters that is never possible as the Testator is dead. Although the estate trustee is his representative there is still no certainty as one main party is dead.

2. The judgment of the court granting probate does not bind only the parties to the proceeding. Unless, and until, it is set aside, it operates in rem and can affect the rights of other persons. Therefore the grant of probate via the granting of a certificate of appointment should not be impeachable after third parties have relied on it. Estate matters from a property perspective are extraordinary in that for no consideration and without delivery a property interest is transferred and recognized by third parties.

3. As C.D. Freedman notes in his article, Probate Contests and the New Law of Summary Judgment, by granting probate, we participate in a transnational system that builds on the approximation of laws.[10] Ontario probate grants may be “resealed” in other jurisdictions, and foreign grants may be “resealed” in Ontario. This allows for the administration of estates with assets in different jurisdictions without replicating probate proceedings elsewhere. This causes certainty to be necessary when granting probate.[^8]

[44] In Otis v Otis, and later, in Etore v. Etore Estate, Cullity J. describes the scope of this court’s probate jurisdiction.[^9] In Otis v. Otis, he stated:

In its origins - and throughout its long history - the jurisdiction has always been inquisitorial in the sense that it was the function and obligation of the court "to ascertain, and pronounce, what is the last will or what are the testamentary documents constituting the last will of the testator, which is or are entitled to be admitted to probate": Re Heys, [1914] P. 192 (P.D.), at page 196.

The role of the court is not simply to adjudicate upon a dispute between parties. The judgment of the court granting probate does not bind only the parties to the proceeding. Unless, and until, it is set aside, it operates in rem and can affect the rights of other persons. For this reason and - and perhaps more fundamentally - because the court is understood to have, in a sense, a responsibility to the testator, it would not grant probate in solemn form on an unopposed application without evidence: Widdifield, Surrogate Court Practice and Proceedings (second edition, 1930), at pages 434 - 5. Nor, as a general rule, would it pronounce against a testamentary instrument solely on the ground that all interested parties consented to probate of an earlier will:

The consent of parties interested proves nothing; no person's consent can make a will no will: Re Watts (1837), 1 Curteis 594 (Prerog. Ct.), at page 595.[^10]

[45] Gordon J. succinctly described the role of the probate court in O’Donovan v O’Donovan:

It is not the function of the court to make a will for a testator. Rather, the duty imposed is to determine whether the purported testamentary document constitutes a will.[^11]

[46] There has been a recent trend in the jurisprudence to apply limitation periods, and the principle of estoppel by convention, to curtail the ability of children and, by implication, the court, to require wills to be proven in solemn form.[^12] It is true that at some point, estate trustees and beneficiaries require certainty and closure in the administration of a testator’s estate. However, it should be presumed that children are entitled to have their parents’ wills proven in solemn form in the absence of compelling reasons why the court should not entertain their request.

[47] Perrel J found such compelling reasons to exist in Bermingham v Bermingham.[^13] In Bermingham, the testator’s daughter, Mary, sought to challenge her mother’s will by applying to revoke or have returned the certificate of appointment that had been issued to the estate trustee. All of the testator’s granddaughters, and Mary's daughters by different fathers, were the respondents in the proceeding. Mary’s sister, Linda, brought a motion to have Mary’s application dismissed. In dismissing Mary’s motion to reopen the validity of the testatrix’s will, Justice Perrel stated:

In the immediate case, having the benefit of legal advice, Mary with knowledge of her rights sat on them for almost eight years while her children benefited from the operation of Jeanette's Will and became dependent upon the benefits. Mary was also a recipient of benefits under the Will, and presumably, she would have received more benefits but for the complication of putting her Ontario Disability Support Plan benefits at risk. However, just delay in the assertion of rights is not enough to establish an equitable defence, and these defences require that there be some prejudice, harm, or detrimental change of position suffered by the opponent that makes the belated assertion of the claim inequitable.[^14] [Emphasis added]

[48] I find that there are no compelling reasons why the court should not determine the validity of the secondary will in the present case in the proceeding commenced by Daniel McLaughlin’s application for a certificate appointing him as estate trustee for the primary will and when considering the notice of objection filed by Thomas McLaughlin to Daniel’s appointment.

[49] Justice Haley, in Oestreich v Brunnhuber, in 2001, stated:

For public policy purposes it is important that wills be open to challenge both before and after probate in common form. In many instances a later will is found, or there are grounds discovered which tend to bring into question the validity of a will. The court should endeavour to ensure that only a valid will is put forward to the world as the last will of a deceased person. Mere delay in questioning the will is not enough to prevent the court from entering into an investigation by requiring proof in solemn form.[^15] [Emphasis added]

[50] Where a will is proven in common form, the principle of res judiciata does not apply. Often, medical information, or a drafting lawyer’s file, including his/her notes, that would disclose whether a testator had testamentary capacity, or whether the lawyer read the will to the client, or whether undue influence was exercised, is not available to the deceased’s family. This information is essential in determining whether a will is valid. It would be unfair to dispose of the potential beneficiaries’ right to have a will proven in solemn form when they did not have this important information disclosed to them. It must be remembered that the testatrix, being the party whose disposition of property is at issue, is unable to participate in the proceeding. In these circumstances, the proceeding cannot be treated like a regular civil motion insofar as rules of proscription are concerned. Rather, a presumption must be applied in favour of allowing children to have a parent’s will proven in solemn form.

[51] Where there are material issues surrounding the validity of a will, it is within the Courts inquisitorial approach as a probate court to require its proof in solemn form. Savage J. expressed this view in Romans Estate v Tassone:

In Trites v. Johnson, 1945 CanLII 475 (BC SC), [1945] B.C.J. No. 76, [1945] 3 W.W.R. 100 (B.C.S.C.) Macfarlane J., as he then was observed that “In a case of this kind where the validity of a will has once been called in question I think it is the duty of the executors to prove the will in solemn form of law….” Proof in solemn form was required even where the party originally requesting such had withdrawn their objection.

In the circumstances, in my view probate in common form is not sufficient in light of the issues raised in the Conveyance Action and in light of the information that is brought before the court in the Probate Action. If the will is proven in solemn form, or per testes, it must be proven in open court, upon notice to all interested persons, and will not be admitted to probate unless the court is satisfied of the due execution of the will, the testator’s knowledge and approval of its contents, his capacity and non-revocation: Osterhoff on Wills and Succession, 6th Edition, 2007, Thomson, Carswell, p. 44. If the will is proven in solemn form then the issue regarding the caveat will be moot.[^16] [Emphasis added]

[52] The Estates Act, in section 24, empowers the court to require a will to be proven in solemn form:

The court having jurisdiction may summon any person named executor of any will to prove, or refuse to prove, such will, and to bring in inventories and to do every other thing necessary or expedient concerning the same.[^17]

[53] Although Daniel McLaughlin sought a certificate of appointment only as estate trustee named in the primary will, and there has only been an objection filed against his appointment in relation to that will, it is nevertheless open to this court, based on the authority given to it in the Estates Act, and by the common law, to take an inquisitorial approach and to inquire into the validity of the secondary will when there appear to be genuine issues in that regard.

[54] Apart from Thomas McLaughlin’s status as objector, children have a right to have their parent’s will proven in solemn form.[^18] I therefore grant Thomas’ request to also have the 2010 wills proven in solemn form.

c) Is this Court bound by Lemon J’s findings with regard to whether the testator read her secondary Will?

[55] Having determined that the 2010 wills should be proven in solemn form, I now turn to the issue of whether Lemon J’s findings of fact are binding on this court and determinative of the issue as to whether the secondary will is valid.

[56] Justice Lemon did not have the benefit of a trial when he made his ruling. However, he had transcripts of cross-examinations of the drafting solicitor, Mr. Walsh, and of the estate trustee, Daniel McLaughlin, on their affidavits. Both those parties were integral to the testatrix’s execution of the 2010 wills, and had the necessary evidence in relation to whether she read and approved the wills before executing them. In his submissions, counsel for Mr. Walsh conceded that his client had acknowledged that he likely did not review the secondary will himself, or review it with Ms. McLaughlin. He gave this evidence in his cross-examinations on his affidavit:

Q. 272: Paragraph 12. You say, “Mrs. McLaughlin attended at my office, read and executed the 2010 wills”. Does that refresh your memory in terms of whether she read both wills?

A: No, what I told you earlier is a refreshed memory.

Q. 273: That she only read one of the wills?

A: ….

Mr. Stewart: Your evidence was that you believe that you reviewed one of the wills…

The deponent: Yes

Mr. Stewart: …the impression that she read the wills?

The deponent: Yes.

Mr. Beaulne:

Q. 274: But, this is – you’re talking about her attending at your office?

A: Yes.

Q. 275: Reading and executing the 2010 wills?

A: Yes.

Q. 276: So, are you now changing this statement?

A: I suppose I am.

Q. 277: And what you’re saying now is that, to the best of your recollection, she only read the will that applied to the non-house assets?

A: I said that we read one of the wills, and that would be the only sensible conclusion, what you’ve just stated there, yes. But, I didn’t want to go so far as to say absolutely that there was the will that was read, but obviously to me know, it must have been.

Q. 278: But you don’t know?

A: Beyond that, no.

Mr. Stewart: Do you know if she read the wills when you had sent them to her house…

The deponent: No, I don’t know whether she had read them.

Mr. Beaulne:

Q. 279: Maybe I’ll – that question. Did you ask her whether she read the wills when you met?

A: No.

Q. 280: So, it’s possible she reads the other will, you’re just not sure which of the two wills it was is the bottom line?

A: Do you mean at the meeting?

Q. 281: Yes.

A: Well, it’s possible, but I think highly unlikely that we reviewed and went through the real estate will.

Q. 315: Is there any point at which you actually read these two wills?

A: I believe that I read the non-real estate will that would have been sent out as a draft.

Q. 316: Which you already told me. Is there any point in which you actually read the house only will?

A: I am sure not.

[57] This evidence was before Justice Lemon and was the basis for his findings of fact. Justice Lemon stated:

Ultimately, 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.[^19] [Emphasis added]

[58] In Kaptyn v Kaptyn, Justice Brown faced a case involving similar circumstances.[^20] He gave the background of that case at paras. 28 to 29 of his reasons. Justice Lederer had heard a will-challenge trial in September 2008 and had released his reasons as to the validity of a codicil in October 2008. Lederer J. was then to hear the second stage of the proceeding, involving interpretation of the testamentary instruments. As events transpired, the parties entered into settlement discussions before Lederer J., which failed to produce an agreement. As a result of his involvement in the settlement discussions, Lederer J. was precluded from hearing the second, "interpretation", stage of the proceeding. In 2009, Strathy J., as he then was, determined several motions concerning the administration of specific assets under the wills, as well as the payment of legacies and specific pecuniary bequests made in the Primary Will, as modified by its codicil. Ultimately, the interpretation application came before Justice Brown in 2010.

[59] Justice Brown dealt with the effect of the prior ruling of Justice Lederer, and what role that judge’s findings would have on his own role as the judge hearing the determination application.[^21] Justice Brown stated:

Moreover, the principle of issue estoppel applies to the findings made by Lederer J. about the intention of the testator. Issue estoppel is concerned with whether an issue to be decided in proving the current proceeding is the same as an issue decided in a previous proceeding; issue estoppel precludes the re-litigation of an issue that has been finally decided by a court in another proceeding. In the civil context, three preconditions must be met for issue estoppel to be successfully invoked: (1) the issue must be the same as the one decided in the prior decision; (2) the prior judicial decision must have been final; and (3) the parties to both proceedings must be the same, or their privies. All three preconditions are present in this proceeding. The issue of John Kaptyn's intention when he made his Primary and Secondary Wills is the same in the first and second stages of this consolidated proceeding; no appeal was taken from the decision of Lederer J.; and the parties to the first and second stages are the same.

Although it is recognized that even when a party has established the preconditions to the operation of issue estoppel "the court must still determine whether, as a matter of discretion, issue estoppel ought to be applied", I see no factor relating to the proper administration of justice that would sanction departing from the findings made by Lederer J. on the extensive record he heard, especially given that initially it was anticipated Lederer J. would hear both the first and second stages of this consolidated proceeding.

While the findings regarding the testator's intent made by Lederer J. do not cover all the disputed questions before me on these applications, I conclude that where the findings are applicable, they are binding on the parties.[^22][Emphasis added]

[60] I must determine whether the principle of issue estoppel applies to Lemon J’s findings as to whether Ms. McLaughlin read her secondary will or, more generally, had knowledge of and approved its contents.

[61] Mr. Rabinowitz submits that Justice Lemon’s findings as to whether the testatrix had read her will were speculation and obiter. He argues that the evidence that emerged from the cross-examination of Daniel McLaughlin and Mr. Walsh on their affidavits was not tested by the truth-eliciting cross-examination at trial and submits that other evidence could emerge from other witnesses that could assist in the determination of the facts. I disagree.

[62] Although Lemon J initially stated he could not be sure, he did make findings as to the facts material to a determination as to the validity of the secondary will. His findings of fact directly guided his analysis as to why the secondary will should be rectified. His findings are so integral to his reasons for rectifying the will that to interfere with them would be inappropriate for this court. Lemon J stated:

I 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.

Mr. Walsh, in his cross-examination, raised the possibility that they only reviewed one will before signing. That too could explain the error.

From 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.

Of 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.

Ultimately, 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.[^23]

[63] Lemon J’s reasons are not speculative. His order rectifying the secondary will was final, and was not appealed. Central to his reasons for rectification was his finding that Ms. McLaughlin did not read or have knowledge of the contents of the secondary will. Although the main issue on the application was rectification, Justice Lemon found that the testatrix did not read or know what she was signing.

[64] In order for issue estoppel to apply:

a) The issue must be the same as the issue decided in the prior proceeding;

b) The prior judicial decision must have been final; and

c) The parties to both proceedings must be the same, or their privies.

[65] A separate trial to determine whether Ms. McLaughlin approved the contents of the secondary will would result in the re-litigation of an issue that was central to Lemon J.’s reasons. Justice Lemon determined the issues of fact, resulting in his final decision rectifying the will, which was not appealed. The parties here are the same as those who argued the issues before Justice Lemon.

[66] It would be a waste of judicial resources to have a full trial on the issue of Ms. McLaughlin’s knowledge and approval of the contents of the secondary will as that issue has already been determined. Additionally, judges should avoid situations in which they could make findings of fact in direct opposition to each other when not sitting as an appeal court from one another. In order to avoid this unseemly result, the court must exercise its discretion and apply the principle of issue estoppel.

[67] For the foregoing reasons, I find that Lemon J’s findings that the testatrix had no knowledge of the contents of the secondary will, and did not approve those contents, are binding on me in my determination as to the validity of that will.

d) Is the secondary will valid?

[68] The propounder of a will has the legal burden of showing that the testator had testamentary capacity and had knowledge and approval of the will and duly executed it. Once there is evidence of due execution, and of the will having been read over by the testator, a rebuttable presumption arises that the testator knew and approved of the contents of the will.[^24]

[69] In Smith v Rotstein, in 2010, Brown J (as he then was) quoted Feeney’s Law on Trusts and stated:

The law concerning a testatrix’s knowledge and approval of the contents of her testamentary instruments is succinctly summarized in Feeney’s Canadian Law of Wills:

§ 3.1 Those who propound a will for probate have the evidentiary burden of proving not only requisite capacity but also that the testator knew and approved of the contents of the will. In satisfying the court about knowledge and approval of contents those who probate wills are aided by the presumption that the contents of a will were known, and approved, either if the will had been read over to a testator, or if the contents were otherwise brought to his or her attention…

§3.3: There is a distinction between knowledge and approval of contents of the will and undue influence; a testator may be fully aware of what he or she is doing but have his or her independence of will completely overborne.[^25]

[70] In Botnick et al. v. The Samuel and Bessie Orfus Family Foundation et al., in 2011, Justice Penny stated:

A testatrix must not only know and approve of the clauses in the will as written but must also understand the magnitude and effect of the gifts. There is, however, no requirement that a testatrix must understand the provisions of the will in the way a lawyer would: Russell v. Fraser (1980), 1980 CanLII 737 (BC CA), 118 D.L.R. (3d) 733 (B.C.C.A.); Johnson v. Pelkey (1997), 1997 CanLII 2935 (BC SC), 17 E.T.R. (2d) 242 (B.C.S.C.), at para. 115, aff'd [1999] B.C.J. No. 1321 (B.C.C.A.).[^26] [Emphasis added]

[71] In Executors, Administrators and Probate (2008), Williams, Mortimer and Sunnucks state:

There must be a proper and sufficient reading over the will. It might be a proper reading of the will by the testator if he were merely to cast an eye over it or if a draft has been sent him for his perusal accompanied by a letter to the effect that there had been no material departure from his instructions.[^27]

[72] In Hastilow v Stobie, in 1865, it was held that if the testator executes a document, the contents of which he is ignorant of, such a document cannot be held to be a valid will.[^28]

[73] It is clear from the jurisprudence that a testator should read or have the will read over to him/her. At the very least, the contents of the will should be brought to the testator’s attention at some point before the execution of the will. The testator must know what is in the document that he or she is signing. The understanding does not have to be that of a lawyer, but it must be sufficient.

[74] Based on Lemon J’s findings, it is obvious that the secondary will was not read to Ms. McLaughlin and that she did not read it herself, or understand its contents. Justice Lemon expressly comes to this conclusion when he says:

Of 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.

Ultimately, 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.

[75] Mr. Rabinowitz’s principal argument as to why the secondary will should be found to be valid, or that there should be a trial to make that determination, is that although the reading of the will is the preferred practice, it is not the only way of satisfying the requirements for a will’s validity. He submits that where the testatrix gave instructions, and was confident that those instructions were carried out by the solicitor, and signed the will with that understanding, the rectified will is valid. He adds that many wills have been rectified in situations where it is clear that no one read the mistaken will. To invalidate a will in the present case, he argues, would be contrary to the results in those cases, in which the rectified wills were held to be valid.

[76] Mr. Rabinowitz relies on the decision of this court in Lipson (Re) in 2009, which involved facts similar to those of the present case.[^29] In Lipson, Pattillo J. dealt with an application to rectify a drafting error in a will. He stated:

In my view, it is clearly apparent from a reading of the will as a whole that there are mistakes on its face in Article I of the Secondary Estate Will. While the mistakes are readily apparent when the Secondary Estate Will is read on its own, in my view, in the circumstances of the case, it is more appropriate when considering Mr. Lipson's will as a whole to read both the Primary Estate Will and the Secondary Estate Will together as one will.[^30]

[77] Later, Pattillo J stated:

In my view, the evidence clearly establishes that at all times Mr. Lipson intended to leave his entire estate to his wife in the event he predeceased her; that he specifically instructed Mr. Hall in the preparation of the two Wills to deal with all his property; and when he executed the Wills he did not read them and was not aware of the mistakes in Article I of the Secondary Estate Will.[^31]

[78] In the present case, Ms. McLaughlin had a clear history of wanting to exclude Thomas McLaughlin and Judith Corrado as beneficiaries of her estate, and the rectification that Lemon J granted appears to satisfy her wishes in that regard. However, this is only one factor that the court must consider when determining whether a will is valid.

[79] Patillo J makes findings that are similar to Lemon J. He states:

Finally, I accept Mr. Harper's evidence surrounding the execution of the two Wills by Mr. Lipson at his residence on January 31, 2008. Given the way in which Mr. Harper proceeded to have the Wills executed I have no doubt, as I have already stated, that not only did he not read them before signing but neither did Mr. Lipson.

While I understand Andrew and Michelle's suspicions surrounding the execution by their grandfather of the two Wills, having considered all of the evidence carefully, I am unable to find that there was anything sinister or improper in respect thereof. In my view the unusual circumstances arose solely because of Mr. Harper's unprofessional behavior in seeing to the execution of the Wills.[^32]

[80] I am unable to rely on Lipson (Re) as support for the validity of the secondary will in the case before me. Although there were accusations in Lipson (Re) “that the execution of the Wills involved some sort of conspiracy and cover-up involving the Applicant, Mr. Hall and Mr. Harper to exclude Andrew and Michelle from Mr. Lipson's will,”[^33] Patillo J. was not determining the validity of the will proved in solemn form, based on whether the testator had knowledge of and approved the contents of the will. As noted above, the validity of a will and the rectification of it are two distinct issues.

[81] Mr. Rabinowitz further argues that if the testatrix gave instructions to Mr. Walsh, and then relied on him to prepare the will, and signed what she believed was a will that reflected her instructions, the will can be valid despite the fact that the will was not read by her or to her. Although counsel did not cite jurisprudence in support of this proposition, the passage that is most frequently cited in support of it is the jury charge in Parker v Felgate, in 1883.[^34] The Privy Council upheld that jury charge in Perera v Perera, in 1901,[^35] and the Supreme Court of Canada approved of it in Kaulbach v Archbold, in 1901, in Faulkner v Faulkner, in 1920, and in Rogers v Davies et al., in 1932.[^36]

[82] The often-quoted passage is that, “all that is necessary to make it a good will, if executed by the testator, is that he should be able to think thus far, ‘I gave my solicitor instructions to prepare a will making a certain disposition of my property. I have no doubt that he has given effect to my intention, and I accept the document which put before me as carrying it out.’” This passage has been relied on as the basis for rectifying many wills, and Mr. Rabinowitz would argue that provides a rationale upon which a court could find that a will such as the one in Lipson was valid, although the validity of that will was not an issue before the court in that case. A proper understanding of the principle, however, requires a reading of the full passage from Parker v Felgate, which the Privy Council approved, and our Supreme Court upheld:

If a person has given instructions to a solicitor to make a will, and the solicitor prepares it in accordance with those instructions, all that is necessary to make it a good will, if executed by the testator, is that he should be able to think thus far: “I gave my solicitor instructions to prepare a will making a certain disposition of my property; I have no doubt that he has given effect to my intention, and I accept the document which is put before me as carrying it out.”

[83] In cases where a will has been prepared in accordance with the testator’s instructions, the testator’s failure to read it, or hear it read, will not invalidate it. However, the principle cannot give validity to a will that has not been prepared in accordance with the testator’s instructions, after the court has rectified it. In such a case, neither a reading of the will by, or to, the testator, nor the solicitor’s preparing of the will in accordance with the testator’s instructions, as in Parker v. Felgate, has occurred to support a finding of validity. Parker is premised on the solicitor taking instruction and preparing the will in accordance with those instructions. In the present case, and in Lipson, that did not occur. The lawyer did not draft the will according to the client’s instructions. Because the testatrix also did not read the will or have it read to her, there was no safeguard to ensure that it reflected her instructions.

[84] In cases where wills are rectified and there is a clear finding that the testator could not have read the will or had it read to her because the mistake is patent, as it is here and was in Lipson, a judge, while addressing the issue of rectification, could also determine that the will is invalid, based on the testatrix’s lack of knowledge and approval of its contents. The exception in Parker would not apply in those circumstances. Whatever the solicitor’s instructions, he clearly did not follow them, as is obvious (and as was obvious to Lemon J.) based on the patent errors in the secondary will.

[85] For the foregoing reasons, I am unable to accept Mr. Rabinowitz’s submission and must determine the validity of the secondary will based on Lemon J.’s findings that Ms. McLaughlin did not read the will or have knowledge of or approve its contents. On this basis, I find the secondary will to be invalid.

e) Is the primary will valid?

[86] The evidence before Justice Lemon, and the findings he made, do not enable me to determine whether the primary will is valid. Mr. Walsh stated, on the application before Lemon J, that he thinks he did review that primary will with the testatrix. This issue requires a trial where the affected parties have the opportunity to prove the primary will in solemn form.

[87] In providing directions as to the procedure to be followed for the trial of this issue, I am indebted to the guidance given by Brown J in Estate of Lorraine Coombs, in 2014:

As to the format of the short trial, I accept the submissions of applicants’ counsel that a hybrid form of hearing should be used. Any party who intends to testify at trial must file an affidavit which will serve as his or her evidence-in-chief at trial. Time limited viva voce cross-examinations will be scheduled. As to the evidence from non-party witnesses, the parties should attempt to secure affidavits from them, but I recognize that might not be possible in each case. Where it is not, the party must serve a detailed “will say” of the anticipated evidence from the non-party witness.

All such affidavits and “will say” statements must be served no later than June 13, 2014. Counsel shall book a 45-minute trial management conference before me for some day during the weeks of June 16 or 23, 2014, starting sometime after 3 p.m. in the afternoon. At that conference I will set the time limits for cross-examinations at the trial.

The applicants must deliver their Trial Record no later than April 30, 2014.[^37]

CONCLUSION AND ORDER

[88] As I noted in my reasons dated June 1, 2015, this decision does not bring an end to this litigation or to the expenses associated with it. It is still open to the parties to seek a consensus as to the disposition of their mother’s estate before their dissention further diminishes the benefit that any of them will derive from it. While it can be hoped that they will see the wisdom of doing so, the court does not have the power to require it.

[89] For the reasons stated above:

1. It is ordered and declared that the secondary will signed June 16, 2010, (being the Will that purports to dispose of Ms. McLaughlin’s house) is invalid;

2. It is further ordered that the validity of the primary will signed June 16, 2010, shall be determined upon proof in solemn form, at a short trial to be held in accordance with the following directions:

a) A hybrid form of hearing shall be employed.

b) Any party who intends to testify at trial must file an affidavit which will serve as his or her evidence-in-chief at trial.

c) Time limited viva voce cross-examinations will be scheduled.

d) The parties shall attempt to secure affidavits from non-party witnesses. Where this is not possible, the party shall serve a detailed “will say” of the anticipated evidence from the non-party witness.

e) All such affidavits and “will say” statements shall be served by July 31, 2015.

f) Counsel shall book a 45-minute trial management conference before me for some day during the week of August 17 or 24, 2015. At that conference, I will set the time limits for cross-examinations at the trial.

g) The applicant shall deliver his Trial Record by September 11, 2015

[90] I will accept cost submissions, not to exceed 3 pages plus a Costs Outline, from all parties for this hearing by July 17, 2015.

[91] I would like to thank Mr. Rabinowitz, in particular, for his submissions to the court, which I found most helpful.

Justice David Price

Released: June 30, 2015

Corrected: July 28, 2015

[^1]: McLaughlin et al v. McLaughlin et al, 2014 ONSC 3162, paras.75 and 79 [^2]: McLaughlin v McLaughlin, 2015 ONSC 3491 [^3]: McLaughlin v McLaughlin, 2014 ONSC 3162 [^4]: Lemon J., paras 55, 72 [^5]: Robinson Estate v Rondel, [2010] O.J. No. 2771 at paras 24-27(ONSC) [^6]: Vout v Hay, 1995 CanLII 105 (SCC), [1995] 2 S.C.R. 876, para. 26. [^7]: Romans Estate v Tassone, 2009 BCSC 194, at paras. 48-49: affirmed 2009 BCCA 421 [^8]: McLaughlin v McLaughlin, 2015 ONSC 3491, paras. 32 and 33 [^9]: Etorre v Etorre Estate, [2004] O.J. No. 3646 [^10]: Otis v. Otis, above, at para. 23 and 24 [^11]: O’Donovan v O’Donovan, 2009 CanLII 64828 (ON SC), [2009] O.J. No. 5020 (ONSC), para. 101 [^12]: See Leibel v Leibel, 2014 ONSC 4516, [2014] O.J. No. 3745, and Neuberger Estate v York, 2014 ONSC 6706 [^13]: Bermingham v Bermingham, 32 E.T.R. (3d) 292 [^14]: Bermingham, para. 52 [^15]: Oestreich v Brunnhuber, [2001] O.J. No. 338, at para. 26 [^16]: Romans Estate v Tassone, 2009 BCSC 194, paras. 51 and 52, affirmed 2009 BCCA 421 [^17]: Estates Act, RSO 1990, c E.21 [^18]: See Stefanik v. Stefanik, [2000] O.J. No. 3279 (S.C.J.) at para. 4, Hie v. Lonsberry Estate, [1989] O.J. No. 276 (Div. Ct.). [^19]: McLaughlin et al v. McLaughlin et al, 2014 ONSC 3162, para. 79 [^20]: Estate of John Kaptyn; Kaptyn v. Kaptyn, 2010 ONSC 4293 [^21]: Kaptyn v. Kaptyn, above, per Brown, J., paras 28-29 [^22]: Kaptyn v. Kaptyn, above, per Brown J., paras. 48 to 51 [^23]: Lemon J., at paras: 75, 76, 78, 79 [^24]: Vout v. Hay, 1995 CanLII 105 (SCC), [1995] 2 S.C.R. 876, at para. 26. [^25]: Smith v Rotstein, 2010 ONSC 2117, 56 E.T.R. (3d) 216, para. 166 [^26]: Botnick et al. v. The Samuel and Bessie Orfus Family Foundation et al., 2011 ONSC 3043, para. 240 [^27]: Executors, Administrators and Probate, Williams, Mortimer and Sunnucks, (2008) at 13-23 at pg. 189 [^28]: Hastilow v Stobie (1865), L.R. 1 P. & D. 64 [^29]: Lipson (Re) (2009), 52 E.T.R. (3d) 44 (ONSC). [^30]: Lipson, para. 46 [^31]: Lipson, para. 66 [^32]: Lipson, at para 69-70 [^33]: Lipson, at para. 60 [^34]: Parker v Felgate, (1883), 8 P.D. 171 [^35]: Perera v Perera, [1901] A.C. 354 at 361 [^36]: Kaulbach v Archbold (1901), 1901 CanLII 74 (SCC), 31 SCR 387, Faulkner v Faulkner (1920), 1920 CanLII 4 (SCC), 60 SCR 386, and Rogers v Davies et al., 1932 CanLII 3 (SCC), [1932] SCR 407 [^37]: Estate of Lorraine Coombs, 2014 ONSC 2154