Court File and Parties

COURT FILE NO.: ES-1242-15 DATE: 2016-05-09 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: MICHAEL FRANK ROYSTON AND LARRY COHEN as EXECUTORS AND TRUSTEES under the Last Will and Testament of RECIA ROYSTON (DECEASED), Applicants

AND:

KENNETH ALKERTON, JENNIFER ROYSTON, JACOB ROYSTON, PETER ROYSTON, and LAURA ROYSTON, Respondents

BEFORE: The Honourable Mr. Justice G. E. Taylor

COUNSEL: Meagan Swan, for the Executors Siobhan Handley for the Respondent Laura Royston Jennifer Krotz for the Respondents Jacob Royston and Jennifer Royston

HEARD: April 6, 2016

RULING RE INTERPRETATION OF WILL

[1] Recia Royston died on September 29, 2014. Recia’s Will was executed on May 13, 2014.

[2] Recia was the mother of five children: Michael, Peter, Laura, Alan and John. John and Alan predeceased their mother. Alan has two children: Jacob and Jennifer. John had no children.

[3] The executors of Recia’s estate seek the opinion, advice and/or direction of the court regarding the interpretation of clause 4 (f) of Recia’s Will dealing with the distribution of the residue of her estate. The clause in question reads:

My Trustees shall divide the residue of my estate equally among my children alive at my death; but if any child of mine dies before me, leaving issue alive at my death, my Trustees shall divide the part to which that deceased would have been entitled if alive on [sic] at my death among that child’s issue in equal shares per stirpes.

Positions of the Parties

[4] It is the position of Jacob and Jennifer that they are entitled to share equally in one quarter of the residue of Recia’s estate. They say that because their father Alan predeceased Recia and they are Alan’s children, they are entitled to the share of Recia’s estate that would have passed to their father had he not predeceased Recia.

[5] It is the position of Laura that at the time of the execution of Recia’s Will there were three of her children alive. She says Recia was aware that Alan had predeceased her and had children who were living. Laura argues that Recia intended to divide the residue of her estate amongst her three living children and only if one of them predeceased her would the portion of the residue of the estate that would otherwise have gone to one of the three living children pass to a child of one of those three children.

Additional Evidence

[6] Recia’s Will executed on May 13, 2014 replaced an earlier Will which was dated July 23, 1993. The residue clause in the 1993 Will was worded as follows:

To pay or transfer the residue of my estate to to [sic] my children for their own use absolutely. If any of my children have predeceased me but have died leaving children it is my wish that my Trustee hold the share of said minor(s) in trust until said minor(s) reach the age of eighteen at which time said share shall be transferred to the said minor beneficiary for his or her use absolutely.

[7] The Will executed by Recia in 2014 also contained the following clause:

4 (g). If any of my issue (a “Beneficiary”) becomes entitled to receive any portion of the residue of my estate before attaining the age of Twenty-one (21) years, that portion (“the Portion”) shall be held in trust and invested by my Trustees upon the following terms:

iii. If that Beneficiary dies before attaining the age of Twenty-one (21) years leaving issue then alive, my Trustees shall divide the Portion or the amount of it then remaining among the issue of that Beneficiary in equal shares per stirpes. If that Beneficiary leaves no issue then alive, my Trustees shall divide the Portion or the amount of it then remaining among my issue in equal parts per stirpes.

[8] Alan died in 1996. Alan’s widow remarried approximately four years after his death.

[9] Michael is one of the executors of Recia’s estate. In his affidavit in support of this Application he deposed at paragraph 12:

Upon reading Paragraph 4 (f) of the Will, it would appear that the residue of my mother’s estate is to be divided as follows:

a. ¼ of the Estate to myself as a living child of Recia Royston;

b. ¼ of the Estate to Peter as a living child of Recia Royston;

c. ¼ of the Estate to Laura as a living child of Recia Royston; and

d. ¼ of the Estate to Jennifer and Jacob, equally, as issue of Alan, who is a deceased child of Recia Royston.

[10] Laura, objects to the distribution of Recia’s estate as proposed by the executors. In an affidavit in response to this Application, Laura deposed to the following:

1. The wording of Recia’s Will specifies that the residue of her estate is to be divided amongst her children alive at her death who were Michael, Peter and herself;

2. Jacob and Jennifer were brought up in a happy, healthy and wealthy family situation having the benefit of a successful family business, a large country estate, a summer cottage and have never faced any obstacles to reaching their full potential or becoming successful;

3. She and her siblings suffered emotionally, intellectually and financially because of an alcoholic father and the circumstances they lived through in the family home growing up;

4. Jennifer and Jacob spent very little time with Recia in the months leading up to her death;

5. She does not believe that Recia intended to leave part of her estate to Jacob and Jennifer;

6. She believes her mother intended to benefit her three living children and if one of them predeceased her, the children of one of those living children;

7. She is the only living child of Recia with a child;

8. She believes Recia was satisfied that Jacob and Jennifer had been adequately provided for and that she did not intend it to leave a portion of her estate to them.

[11] Jacob and Jennifer both swore affidavits in response to this Application. They dispute some of the allegations contained in Laura’s affidavit particularly with respect to their relationship with Recia. They both deposed that they maintained a relationship with Recia up until her death.

[12] Larry Cohen is one of two executors of Recia’s estate. He is the brother of Recia. He is not a beneficiary. He was present when Recia instructed her lawyer about the terms she wished to have included in her Will. He says Recia gave instructions to the lawyer to the effect that she wanted her three children who were alive to be the beneficiaries under her Will. She did not address whether any of her grandchildren were to be beneficiaries. Larry Cohen was also present when the Will was executed. He says he and the lawyer reviewed the substance of the Will with Recia but did not read it to her verbatim. In the course of reviewing the terms of the Will, Larry Cohen told Recia that pursuant to the new Will, the residue of her estate would pass to her three children. The lawyer did not contradict that advice.

[13] There is no evidence from the lawyer who drafted the Will regarding his understanding of the instructions given to him by Recia.

Analysis

[14] The Ontario Court of Appeal in Robinson Estate v. Robinson, 2011 ONCA 493, [2011] O.J. No. 3084, held that as a general rule, when construing a will, the testator’s intention must determined from the words used in the will and not from direct extrinsic evidence of intent (paragraph 23). If however, the testator’s expression of intent is less than perfect, extrinsic evidence is admissible to aid the construction of a will but such evidence will be limited to the testator's circumstances and those surrounding the making of the will (paragraph 24). Direct evidence of a testator’s intentions is inadmissible (paragraph 27). As the court stated, much uncertainty would be introduced into estate litigation if disappointed beneficiaries could challenge a will based on their subjective belief of the testator’s intentions (paragraph 27).

[15] In my view, much of the evidence contained in Laura’s affidavit, and specifically the evidence referred to in paragraph 10 of these Reasons is accordingly inadmissible. I also find the evidence of Jacob and Jennifer as contained in their affidavits to be largely inadmissible although I recognize that such evidence was presented in order to counter that contained in Laura’s affidavit. For the same reason, the opinion expressed by Larry Cohen that paragraph 4 (f) of Recia’s will does not express her wishes is also inadmissible.

[16] In Barlow v. Parks Estate, [1980] O.J. No. 266 the Ontario Court of Appeal explained the basic rule for the construction of wills is to determine the true intention of the testator in the light of all the surrounding circumstances (paragraph 10).

[17] In Re Burke, [1960] O.R. 26, Court of Appeal gave the following direction regarding the approach to interpretation of wills:

The Court is now called upon to construe a particular document and, at the outset, I emphasize what has been said before so frequently. The construction by the Court of other documents and decisions in other cases respecting the intention of other testators affords no assistance whatsoever to the Court in forming an opinion as to the intention of the testator in the particular case now under consideration. Other cases are helpful only in so far as they set forth or explain any applicable rule of construction or principle of law. Each Judge must endeavour to place himself in the position of the testator at the time when the will was made. He should concentrate his thoughts on the circumstances which then existed and which might reasonably be expected to influence the testator in the disposition of his property. He must give due weight to those circumstances in so far as they bear on the intention of the testator. He should then study the whole contents of the will and, after full consideration of all the provisions and language used therein, try to find what intention was in the mind of the testator. When an opinion has been formed as to that intention, the Court should strive to give effect to it and should do so unless there is some rule or principle of law that prohibits it from doing so.

[18] Following in the directive of the Court of Appeal in Re Burke it seems to me that the following circumstances can reasonably be expected to have influenced Recia in preparing and executing the Will:

1. the Will was replacing the 1993 Will;

2. Recia had five children, two of whom were deceased by 2014;

3. Recia had three grandchildren, Jacob and Jennifer who were the children of Alan who was deceased, and Joshua who was the son of Laura;

4. all three grandchildren were over the age of 21 years by May 2014;

5. pursuant to the 1993 Will, Jacob and Jennifer were entitled to share in the distribution of the residue of Recia’s estate.

[19] Based on these the circumstances, I am required it to interpret clause 4 (f) of Recia’s Will in the context of the entire Will.

[20] I see no reason to restrict the words “my children” in the clause 4 (f) of the Will as meaning anything other than their plain meaning. “My children” refers to all of Recia’s children. The words “my children” are then restricted by the following words “alive at my death”. Therefore, in the opening words of clause 4(f), in my view, Recia was referring to all of her children, including her deceased children, but she then limited the children who were to share in the distribution of the residue of her estate to those of her children who were alive at the date of her death. However in the words following the semi-colon in clause 4 (f), Recia went on to provide for the issue of deceased children. She provided that the issue of deceased children were to receive “in equal shares per stirpes” the share of the deceased child. Had Recia intended to benefit only the issue of the children who were alive at the date of the Will, she could have done so. Similarly, if Recia had intended to exclude Alan’s children, she could have done so, but she chose not to. There is nothing in the Will which suggests that Recia intended to treat her then living children or their issue differently from the issue of her then deceased child.

[21] This interpretation is consistent with clause 3 (d) of the 1993 Will. There is no suggestion that Jacob and Jennifer were not entitled to share in the distribution of the residue of Recia’s estate pursuant to the 1993 Will. The wording of clause 4 (f) of the 2014 Will and the clause 3 (d) of the 1993 Will is not identical but in my view both clauses express the same intent. Apart from raising the age of at which a grandchild would be entitled to receive their interest from 18 to 21 years, the two Wills show a consistent intention to benefit the children of any deceased child. Other than this change of age, there is no evidence that Recia intended to effect a change to her intent expressed in clause 3 (d) of the 1993 Will upon execution of the 2014 Will.

[22] There is another clause in the Will which bears on the issue of Recia’s intention. Clause 4 (g) iii provides that the share of any beneficiary under the age of 21 who dies before reaching 21 years of age without issue, then that beneficiary’s share of the estate is to be divided amongst Recia’s issue in equal parts per stirpes. As of the date of execution of the Will there were no potential beneficiaries who were under the age of 21 years. Therefore, this clause must be referring to potential unborn children of Recia’s grandchildren. Based on the interpretation of the Will asserted by Laura, clause 4 (g) iii can only refer to unborn children of Joshua. However, if Laura and Joshua were to predecease Recia that share of the residue of the estate would be distributed to Recia’s issue in equal parts per stirpes which would include Jacob and Jennifer. Accordingly, in my view, the wording of clause 4 (g) iii supports the conclusion that Recia intended Jacob and Jennifer to receive what otherwise would have been Alan’s share of the residue of her estate.

Conclusion

[23] For these reasons it is the opinion of this court that the distribution of the estate of Recia Royston pursuant to clause 4 (f) of the Last Will and Testament dated May 13, 2014 is as follows:

a. ¼ of the Estate to Michael as a living child of Recia Royston;

b. ¼ of the Estate to Peter as a living child of Recia Royston;

c. ¼ of the Estate to Laura as a living child of Recia Royston; and

d. ¼ of the Estate to Jennifer and Jacob, equally, as issue of Alan, who is a deceased child of Recia Royston.

[24] Accordingly, there will be an order that the residue of the estate of Recia Royston be distributed as set out above.

[25] With respect to the issue of costs, if the parties are unable to come to an agreement, arrangements should be made through the trial coordinator to schedule a brief appearance before me to deal with the issue of costs. Bills of Costs and Cost Outlines are to be filed at least two days before the scheduled hearing date.

G. E. Taylor J. Date: May 9, 2016