Court File and Parties
Citation: Rammage v. Estate of Roussel, 2016 ONSC 1857 Court File No.: 13-43636 Date: 2016-03-16 Superior Court of Justice - Ontario
Re: Kathryn Rammage and Jason Roussel, Plaintiffs And: The Estate of Ruth Carol Roussel, Jill Molnar and Tracy Hitchcock, Defendants
Before: The Honourable Mr. Justice Robert B. Reid
Counsel: C. Cohen, Counsel, for the Plaintiffs J. Kranjc, Counsel, for the Defendants
Heard: January 28, 2016
Endorsement
[1] The sole issue between the parties in this summary judgment motion is whether the deceased, Ruth Carol Roussel, made a mutual will that prevented her from subsequently changing the effect of its terms.
Suitability for summary judgment:
[2] As a preliminary matter, I must determine whether a summary judgement is appropriate.
[3] Both parties submitted that all available information is present through affidavits and transcripts of cross-examinations. There are no significant disagreements as to the evidence and therefore no credibility issues. The parties submitted that this court is able to make necessary findings of fact and that there is no genuine issue requiring a trial. In addition, it was noted that as a matter of proportionality, it is practical to conclude this matter without a trial since the value of the estate in question, before any costs issues are considered, is in the range of $250,000.
[4] I agree with the parties that this is an appropriate case for granting summary judgment. I conclude that there is no genuine issue requiring a trial, and no need to use the special powers found in Rule 20.04(2.1) of the Rules of Civil Procedure[^1].
Background facts:
[5] Alfred Roussel (“Alf”) and Ruth Carol Roussel (“Ruth”) began living together in 1985 after dating from about 1981. They were married on December 24, 1997. Each had two children from previous relationships: the plaintiffs are Alf’s children and the personal defendants are Ruth’s children.
[6] About 10 months after they began cohabiting, Ruth and Alf made a written agreement that provided in part that any property held or acquired later in the name of either of them would be free of any claim by the other. The agreement expressed an expectation that Alf would make no contribution to the acquisition, repair or maintenance of Ruth’s real property. Ruth released any future support claim against Alf and there were mutual releases against each other’s estate. The cohabitation agreement was to continue to apply notwithstanding the marriage of the parties, but it did provide that there was no restriction on making testamentary gifts by either one to the other. At the time, Alf owned no real property and had few assets. The home owned by Ruth was her main asset acquired in part from proceeds inherited on the death of a previous husband, the father of the defendants.
[7] When cohabitation began, Alf’s children were living with their mother and he was paying support. He maintained a close relationship with his children. Ruth’s children were somewhat older. The elder of the two, Jill Molnar, left home in 1990 at the age of 23. By the date of marriage in 1997, all four children were independent and living away from home.
[8] Ruth worked at several jobs outside the home until approximately 1990. Thereafter, she assumed the role of a traditional homemaker. Alf continued to work at Navistar in the computer department until the fall of 2008. He was the main breadwinner. His income was used to pay mortgage and line of credit payments as well as other household expenses. Ruth maintained the home.
[9] In February 1998, Alf and Ruth signed wills by which they gave all of their respective estates to each other and provided for an equal division amongst their four children on the death of the survivor. They named one of each of their children from their previous marriages as trustees.
[10] Alf died in February 2009 of lung cancer after a lengthy illness. Ruth inherited his estate under his 1998 will, but the details are unknown because apparently no court process was required. Outside whatever inheritance she received by will, Ruth did receive a survivor’s pension from Alf’s former employer in the amount of $780.97 monthly. She also received a lump sum Canada Pension Plan survivor benefit of $3,465.90 and life insurance proceeds in the amount of $34,455.66. She became the sole owner of the jointly owned trailer which she later sold for $21,000, and she received an RRSP refund of premiums totaling $7,410.84. Because Alf had cosigned the line of credit secured against Ruth’s home, and since it was life insured, she received insurance proceeds paying off the credit line in the amount of $102,598.69.
[11] In January 2010, Ruth prepared a new will leaving her estate to her two daughters. They were both named as trustees.
[12] The parties have suggested a reason for Ruth changing her 1998 will. They observe that, upon Alf’s death, Ruth discovered and was upset by the fact that Alf had three modest life insurance policies by which each of the plaintiffs and Alf’s ex-wife received about $5000. With no apparent explanation to the defendants, Ruth gave each of her daughters a gift of $5000, possibly from funds she received as a result of Alf’s death. The defendants also suggest that Ruth changed her will because she did not have a close ongoing relationship with the plaintiffs, particularly after Alf’s death.
[13] In any event, it is clear that the relationship between Ruth and the plaintiffs deteriorated after Alf’s death, although the plaintiffs have deposed to their efforts to maintain contact.
[14] The issue of whether the wills were mutual is unrelated to whatever reason motivated Ruth to change her 1998 will after Alf’s death. Either she was contractually prohibited from making a change, or was free to change her will regardless of the reasons.
[15] Ruth sold the matrimonial home and purchased two residences successively before her death.
[16] Ruth died on May 1, 2013.
Legal principles:
[17] Reciprocal wills contain terms that are mirror images of each other. By definition, they represent the wishes of the two testators at the date of signing. The wills made by Ruth and Alf in 1998 are clearly reciprocal. However, the simple fact that the wills were made in that form simultaneously is not enough, by itself, to establish that they are mutual wills.
[18] Mutual wills are reciprocal wills that the makers have agreed cannot be changed, at least as to their effect, without the consent of the other. Once one of the testators has died, it is not possible for the surviving testator to receive such consent, and therefore the terms cannot be altered.
[19] For wills to be mutual, their provisions must be identical in the sense that each party receives an identical interest from the other, or that the remainder or gift over is disposed of in an identical manner.
[20] Where wills are not specifically identified as being mutual, there must be evidence of a binding legal contract and not “just some loose understanding or sense of moral obligation”[^2] if they are to be deemed mutual. Whether the extrinsic evidence supports the presence of a binding legal contract is the key issue to be determined in this case.
[21] Although it is not relevant for this decision, I observe that if the wills do not make gifts to the surviving testator conditional, that person can deal with the inherited property without restriction as long as doing so is not inconsistent with the intent of the agreement. For example, normal use of the capital for the person’s benefit would be permitted, but gifting significant portions of the estate to different people or in different proportions than contemplated by the wills would be prohibited. Here there is no issue about the use of the funds by Ruth prior to her death. The plaintiffs’ claim is that the 1998 will imposed a trust on Ruth’s estate as it existed on her death that should be administered in accordance with the terms of that will.
[22] As a matter of public policy, it is recognized that special care must be taken in examining evidence concerning the validity of a will. The Evidence Act[^3] provides at section 13 that:
In an action by or against the heirs, next of kin, executors, administrators, or assigns of the deceased person, an opposite or interested party shall not obtain a verdict, judgment or decision on his or her own evidence in respect of any matter occurring before the death of the deceased person, unless such evidence is corroborated by some other material evidence.
[23] Addressing the same need for special care in such matters, Justice Cullity in Edell v. Sitzer[^4] at paragraph 58 asserted that proof of a binding contract to establish mutual wills must be established through clear and convincing evidence.
[24] There is no dispute that the plaintiffs bear the onus of proof since it is they who challenge the otherwise valid will made by Ruth in 2010.
Evidence and position of the plaintiffs:
[25] Each party relies on particular facts to support or negate the implication that the 1998 wills were mutual. Unlike the situation in Edell, the second testator is not alive and therefore the case does not turn on a question of the credibility of the surviving testator.
[26] Because the plaintiffs bear the onus of proof, and despite the fact that they are the responding parties to this motion, I will deal with their position first.
[27] The plaintiffs assert that the 1998 wills were mutual and that the evidence indicates a binding agreement between Alf and Ruth to that effect.
[28] During the parties’ 13 years of cohabitation before making the 1998 wills, and particularly since 1990 when Ruth retired, Alf and Ruth’s relationship evolved into a traditional marriage where he provided income for family purposes including mortgage payments and household maintenance. In 2002, he signed as guarantor of the line of credit secured against the matrimonial home Ruth owned.
[29] Alf had a close relationship with both of Ruth’s children as well as his own. Similarly, according to Kathryn, Ruth told her on several occasions over the years that she and Jason were just like her own children to her.
[30] Alf and Ruth acted as if they had a family consisting of four children. For example, all four children were invited to select belongings of Alf’s mother of special import to them when she moved to a nursing home. Birthday and Christmas presents from Alf and Ruth to the children showed that the four of them were treated in a similar way.
[31] The obituary published after Alf’s death was indicative of a unified family, including his “four children” and grandchildren without distinction as to parentage.
[32] Kathryn recalled in her evidence that at some time in the late 1990’s, Alf discussed arranging for a columbarium niche for himself, Ruth, and if desired for the four children and spouses. According to Kathryn, the niche purchase was part of the couple’s estate planning that also included wills that Alf said would ensure proper care for the survivor and the children.
[33] Kathryn deposed that on one occasion prior to Alf’s death when she was admiring Ruth’s china, Ruth commented that although she and Alf wanted everything to be split equally between their four children, she wanted her girls to share the china, assuming that Kathryn would inherit china from her mother, which Kathryn acknowledged.
[34] It was important for Alf that his children, and in particular his son Jason, be properly provided for through inheritance. Jason was not wholly self-sufficient and was financially subsidized by Alf and Ruth. Alf expressed his concern for Jason’s future well-being on several occasions to his daughter Kathryn. Alf specifically indicated to her that he and Ruth intended to provide a portion of their estate to Jason.
[35] Kathryn deposed that, during his final illness, Alf confirmed his intention that Ruth be taken care of after his death. He also told Kathryn that after Ruth’s death, he and Ruth had arranged that the four children would share everything that was left. This was, of course, consistent with the terms of the 1998 wills. He also reiterated his concern for Jason’s future well-being.
[36] Kathryn’s evidence was that, prior to Alf’s death, Ruth confirmed that she and Alf wanted everything to be split equally between the four children after her death.
[37] After Alf’s death, the sons-in-law and grandsons were invited by Ruth to select items of sentimental value from Alf’s collection of model trucks. Lee Rammage, the spouse of Kathryn, deposed that at that time Ruth said that on her death, everything except those types of small items would be equally divided between the four children.
[38] The funds that flowed to Ruth as a result of Alf’s death including the proceeds of the life-insured line of credit account for more than half the value of Ruth’s estate.
[39] The plaintiffs also rely on Jill Molnar’s statements as to her expectation that if Ruth was to predecease Alf, he would not have been able to disinherit her and her sister by changing his will. The plaintiffs submit that logically, the same situation should apply to prevent Ruth from changing her well.
Evidence and position of the defendants:
[40] The defendants assert that there was no binding agreement to the effect that the 1998 wills could not be changed after Alf’s death.
[41] The cohabitation agreement from 1986 was an indication of Ruth’s intention to maintain her assets free from any claim by Alf. She brought significantly more assets into the relationship than he did, and therefore it was reasonable that the cohabitation agreement was created.
[42] Ruth held title to the parties’ matrimonial home, acquired in 1986. Keeping the title in her name was consistent with the cohabitation agreement and also made sense in that she was protecting assets inherited from her children’s father for their ultimate use through her estate. The evidence indicates that part of the money Ruth inherited from the children’s father was used to pay off the mortgage on the premises she owned at the time. Shortly after the cohabitation agreement was signed, Ruth bought a property at 222 Athenia Drive for a purchase price of $107,000. A portion of the purchase price was comprised of a mortgage in the amount of $47,300.
[43] Ruth’s first husband, the father of Jill Molnar and Tracy Hitchcock, was James Smith. Prior to his death, he unsuccessfully attempted to change his beneficiaries from Ruth to his daughters. Jill Molnar deposed that after the death of her father in 1984, Ruth indicated to her and her sister that she would make sure they were “taken care of”, in the sense that her two children would inherit her home since a portion of its value represented funds Ruth received from their father’s estate. During her final illness, Ruth told Jill that “You guys are going to be OK”. Ruth never discussed the terms of either her 1998 will or her 2010 will with her children.
[44] The lawyer who prepared the 1998 wills recalled no expressed intention or discussion to the effect that the parties could not change the wills independently of each other.
[45] Ruth always had a close relationship with her daughters but, particularly after Alf died, did not have a close relationship with his two children.
[46] According to the defendants, it is inequitable that they share their inheritance from Ruth with the plaintiffs, representing as it does, albeit indirectly, money Ruth received from their father’s estate. On Alf’s death, his children did receive the proceeds of small life insurance policies, in the amount of about $5000 each.
Was there a contractual agreement?
[47] To state the obvious, there was no direct written or oral confirmation that the 1998 wills were mutual. The lawyer who prepared the wills did not discuss that matter with Ruth and Alf. He simply accepted their instructions. They gave him no impression about their intentions beyond the specific terms of the wills. He asked them no questions as to mutuality.
[48] Counsel for the defendant submits that the 1998 wills do not have identical provisions in the sense that each party receives an identical interest from the other, or that the remainder or gift over is disposed of in an identical manner, and therefore they cannot be mutual wills. I disagree. Counsel seeks to compare assets, and asserts that Ruth had assets of significant value while Alf had few. In fact, the requirement for transmission of an identical interest is satisfied in this case by the absolute gift of all the respective testator’s assets in the specified manner. Thus each party does receive an identical interest.
[49] Since neither Ruth nor Alf are alive, the parties must turn to extrinsic evidence to support or negate the intention to make mutual wills, bearing in mind that the onus of proving the mutual wills is born by the plaintiffs. That evidence must be considered contextually. I accept that a moral obligation is insufficient to raise the terms contained in reciprocal wills to the level of a contractual obligation.
[50] As I have noted, it is well-established that the reciprocal terms of the wills alone do not lead to a conclusion that the wills were mutual. As Justice Cullity wrote in Edell at paragraph 73:
By definition, a will is a statement of an individual’s testamentary intentions at the time it is executed. The fact that, of its nature, it is a revocable instrument reflects the fact that testamentary intentions, and the contents of a person’s will, may change. Evidence of statements of the testamentary intentions of spouses at a particular time does not, by itself, give rise to any inference with respect to an agreement that such intentions would not change in the future.
[51] While the reciprocal 1998 wills by themselves do not prove that they were intended to be mutual wills, their existence, signed by Ruth and Alf is clearly one factor to consider. The personal defendants dispute that Ruth would have wanted her estate to be shared with the plaintiffs for the reasons I have outlined. However, it is obvious that at the very least in 1998 their mother had that intention. It is interesting that Jill Molnar deposed she would not have accepted that Alf could make a new will disinheriting her and her sister, had the situation been reversed and her mother died first.
[52] Despite the position of the personal defendants that Ruth promised they would inherit her house, the 1998 wills are clear about the plan made by Ruth and Alf as to the four-way division equally amongst all their children. In fact, Ruth’s promises were made around the time of her inheritance from her former husband in approximately 1984, long before her marriage to Alf and the 1998 wills. The defendants provided no evidence of the specific intentions of Ruth and Alf around the time the 1998 wills were made or thereafter and in fact they had no knowledge of the terms of those wills until after Ruth’s death.
[53] I accept the uncontested evidence of the plaintiffs as to discussions with Ruth and Alf both before and after Alf’s death as to the intended four-way split.
[54] The 1998 wills were made in the context of a 13 year period of cohabitation to that point including the commitment of their marriage. Since 1990, Alf had been the sole breadwinner and was obviously making financial contributions to the family. Both Ruth and Alf had been treating their respective stepchildren as their own.
[55] I find the cohabitation agreement of little significance in resolving this dispute. It specifically allowed gifts by will. It was signed in February 1986, almost 9 years before their marriage and 12 years before the 1998 wills were prepared. I have already noted that from at least 1990, Alf was responsible for the main if not the only financial contributions to the family unit. It is not unreasonable to conclude that Ruth and Alf viewed their relationship as having changed significantly between 1986 and 1998 as to long-term mutual financial commitments.
[56] It is important to consider that the 1998 wills contained two key components: the provision of financial security for the surviving spouse, and an inheritance for the four children in due course. The first component is consistent with a long-term supportive relationship between spouses, and the second is reflective of the blended family history. It is completely logical that both Ruth and Alf wanted to provide for each other and for their respective children with some certainty. This conclusion is supported by both the position of the plaintiffs that Jason Roussel in particular required ongoing financial assistance, and by the position of the defendants that they should receive funds representing a deferred inheritance from their father.
[57] There was no behavior on the part of either Alf or Ruth after 1998 prior to Alfred’s death indicating that either of them wanted to change their estate plan or would allow the other to do so.
[58] I conclude that, in the particular circumstances of this case, the plaintiffs have satisfied their onus of proving the existence of a verbal contract between Ruth and Alf based on clear and convincing evidence. That contract was that neither could change the effect of their 1998 wills without the consent of the other. It was made in the context of the family constellation at the time and is consistent with the evidence that both Ruth and Alf, for their separate reasons, wanted to ensure that a benefit was bestowed on their respective children by the survivor of them.
[59] As to the requirements of the Evidence Act, I acknowledge that the evidence provided by Kathryn Rammage and her husband Lee Rammage as to facts supportive of the mutual wills is self-serving. They have challenged the estate and the trustees of that estate and as such, challenge Ruth’s 2010 will. However, I am satisfied that their position is corroborated by material evidence as to the context of the relationship between Ruth and Alf. As well, the 1998 wills themselves constitute corroborative material evidence.
Conclusion:
[60] For the reasons set out above, there will be judgment for the plaintiffs as follows:
a. There will be a declaration that the wills made by Ruth Carol Roussel and Alfred Walter Roussel both dated February 9, 1998 were mutual wills.
b. The trustees of the estate of Ruth Carol Roussel are to hold the residue of the estate in trust to be divided equally amongst Tracy Lynn Hitchcock, Jill Ann Molnar, Kathryn Ann Rammage and Jason Bradley Roussel.
Costs:
[61] I encourage the parties to discuss the resolution of the costs issue and reach an agreement accordingly. In the event that no agreement can be reached, costs submissions may be made in writing, according to the following schedule:
a. The plaintiffs are to serve the defendants with written costs submissions and a bill of costs on or before March 30, 2016.
b. The defendants are to serve the plaintiffs with written costs submissions and a bill of costs on or before April 13, 2016.
c. The plaintiffs are to serve the defendants with any responding submissions on or before April 27, 2016, and are then to file all submissions with the court by no later than April 29, 2016.
[62] If no submissions are received by April 29, 2016, I will assume that the issue of costs has been resolved.
Reid J.
Date: March 16, 2016
[^1]: R.R.O. 1990, Reg. 194. [^2]: (2001), 2001 27989 (ON SC), 55 O.R. (3d) 198 (S.C.), at paras. 58 and 63, approving Re: Goodchild (Deceased) (1995), [1996] 1 All E.R. 670 (Ch.D.), at p. 681. [^3]: R.S.O. 1990, c. E.23. [^4]: Edell, supra.