Court File and Parties

Brockville Court File No.: 15-0558 Date: 2016-06-17

Ontario Superior Court of Justice

In the matter of the Estate of Franklin Walter Briggs, deceased

BETWEEN:

The Bank of Nova Scotia Trust Company Applicant

Counsel: Neville C. Johnston, for the Applicant

- and -

Louisa Ait-Said, Judy Ostopchik (née Popp), Gary John Ostopchik, Denise Geukens, Jessie Longstone, Derek Longstone, Elizabeth Lockhart, the Governing Council of the Salvation Army of Canada, Erna Harper, Larry Baldissera, the Canadian National Institute for the Blind and Christine Rogerson Respondents

Counsel: Ian B. McBride, for Elizabeth Lockhart and as Agent for the Governing Council of the Salvation Army of Canada and the Canadian National Institute for the Blind

Heard: January 27, 2016 Further written submissions subsequently received

Before: Madam Justice A.C. Trousdale

Endorsement

[1] This is an Application brought by The Bank of Nova Scotia Trust Company as Estate Trustee under the Will of Franklin Walter Briggs who died on October 18, 2014 for opinion, advice, and direction of the Court pursuant to Rules 14.05 and 17.02(b)(i) and (ii) of the Rules of Civil Procedure and Section 60(1) of the Trustee Act, R.S.O. 1990, c.T.23. Ms. Elizabeth Lockhart, a beneficiary under the Will, filed an Application Record and Factum in response to the Estate Trustee’s Application. No other parties filed any material.

Background

[2] Mr. Franklin Walter Briggs (“Mr. Briggs”) died at age 87 in Brockville, Ontario on October 18, 2014. Mr. Briggs was predeceased by his wife, Mrs. Barbara Eva Briggs (“Mrs. Briggs), who died on February 16, 2012.

[3] Mr. Briggs, who was a chartered accountant, executed a Last Will and Testament on August 23, 2011 (herein “the Will”) in which he named The Bank of Nova Scotia Trust Company to be Estate Trustee of his Will.

[4] Mr. Briggs and Mrs. Briggs were estranged from their three children and Mr. Briggs expressly excluded his three children from the Will.

[5] In the Will, Mr. Briggs left his real estate to Mrs. Briggs if she survived him and provided that the residue of his estate be invested, with the net income to be paid out to Mrs. Briggs, as well as the ability of the Trustee to encroach on capital for the benefit of Mrs. Briggs.

[6] The Will further provided that upon the death of the survivor of Mrs. Briggs and himself, the residue of his estate was to be divided among five beneficiaries, with his friend Louisa Ait-Said to receive 5 shares, his friend Judy Ostopchik to receive 5 shares (or her son, Gary John Ostopchik if Judy Ostopchik predeceased Mr. Briggs), his friend Denise Geukens to receive 5 shares, his cousin Jesse Lightstone to receive 3 shares (or her husband Derek Lightstone if Jesse predeceased Mr. Briggs), and his friend Elizabeth Lockhart to receive 2 shares.

[7] The shares of each of the five aforesaid beneficiaries were to be invested and the beneficiary was to receive the net income annually, and the capital thereof over a period of five years in equal consecutive installments, with the capital payments to start no earlier than the first anniversary of the date of Mr. Briggs’ death. Further, if any of the aforesaid beneficiaries had predeceased Mr. Briggs, the balance of that beneficiary’s share was to be distributed as part of the residue of his estate as if that beneficiary had predeceased the survivor of Mr. Briggs and his wife.

[8] In the event that all of the aforesaid five beneficiaries died before all the shares were fully distributed, the remaining balance was to be paid or transferred to The Governing Council of the Salvation Army in Canada.

[9] Mrs. Briggs predeceased Mr. Briggs in 2012. All of the five aforesaid beneficiaries and Gary John Ostopchik, and Derek Lightstone survived the death of Mr. Briggs. All of the beneficiaries except for Ms. Lockhart reside outside Canada.

[10] After the death of Mr. Briggs, Ms. Leslie-Ann Buchanan, Trust Officer in the Ottawa Office of The Bank of Nova Scotia Trust Company, attended at the home of Mr. Briggs with Ms. Elizabeth Lockhart, one of the aforesaid beneficiaries who was a friend of Mr. Briggs. They went through Mr. Briggs’ records and found the following documents:

a) a photocopy of a document dated July 29, 2013 (herein “the July 29, 2013 Document”) b) an original of a document written in pencil at the bottom of a photocopy of the July 29, 2013 Document (herein “the August 8, 2014 Document”); and c) a one page undated and unsigned document written in pencil containing some names and figures (herein “the Notes Document”).

[11] No one has been able to locate the original of the July 29, 2013 Document.

[12] The July 29, 2013 Document which was signed and dated by Mr. Briggs at the foot of the writing and was witnessed by Mr. Briggs’ doctor, states as follows:

With Barbara E. Briggs, my wife of 63 years, now deceased I wish to leave all of my personal property presently comprising the total contents of my home at 7 Ruskin Crescent, Brockville, Ontario, the total contents of my safety deposit box at the Bank of Nova Scotia, 7 King Street West, Brockville, Ontario, and my beloved year 2000 Volvo V 70 station wagon wherever situate to my good friend Elizabeth Lockhart of Greely, Ontario, for distribution as she sees fit not excluding distribution to herself.

I can but hope that Elizabeth will find good homes for such of these treasures as are surplus to her own requirements and further that whoever becomes owner of my much-loved Volvo will maintain it in the same superb condition that it has enjoyed since I purchased it so many long years ago.

WITNESSED BY

[signed] F.W. Briggs/F.W. Briggs [printed] [signed] D N P Holmes MD July 29, 2013 [printed] D N P HOLMES MD.

[13] The August 8, 2014 Document was hand written in pencil at the bottom of a photocopy of the July 29, 2013 Document as follows:

NOTE Further to the above:

FWB [signed initials] 2 single beds to Erna Harper of Maitland, Ontario August 8, such of my (men’s) clothing as Larry Baldiserra 2014 of Brockville, Ontario, chooses to acquire.

[14] The Notes Document which was hand written in pencil with evidence of erasures on the document was not signed or dated. I was not shown the original of the Notes Document, but it appears to state as follows:

Judy -25% ✔ 300,000 ✔ Louisa -15% 200,000 ✔ Denise -20% 240,000 ✔ Elizabeth -20% 240,000 ✔ 80% 980,000 [my note – it looks like a 6 was Jessie 2% 20,000 ✔ changed to an 8] CNIB 9% 100,000 ✔ Salvation Army 9% 100,000 ✔ 100% 1,200,000 [my note – it could be 1,200,000 Cash Erna 10,000 or 1,205,000 as the photocopy is Cash Christine 5,000 difficult to read] BEFORE DISTRIBUTION 15,000 220

[15] The value of the total assets of Mr. Briggs as at the date of death is $1,410,282.33.

Issues

[16] The Estate Trustee has requested the opinion, advice and direction of the court in relation to the following questions:

a) Is the photocopy of the July 29, 2013 Document a valid holograph Codicil to the Will? b) If the answer to Question (a) is “yes”, should the photocopy of the July 29, 2013 Document be admitted to probate on the basis that the validity and contents of the July 29, 2013 Document have been proved? c) Is the August 8, 2014 Document a valid holograph Codicil to the Will? d) If the answer to Question (c) is “yes” should the August 8, 2014 Document be admitted to probate on the basis that the validity and contents of the August 8, 2014 Document have been proved? e) Is the Notes Document a valid holograph Codicil to the Will? f) If the answer to Question (e) is “yes”, should the Notes Document be admitted to probate on the basis that its validity and contents have been proved as a testamentary document? g) If the answer to Question (e) is “yes”, what is the scheme of distribution of the residue of the estate in the context of paragraphs 5(e)(A), (B), (C), (D), (E), and (F) of the Will, the July 29, 2013 Document (if the answer to Question (a) is “yes”), the August 8, 2014 Document (if the answer to Question (c) is “yes”), and the Notes Document? h) If the answer to each of Questions (a) and (c) is “yes”, is Elizabeth Lockhart entitled to the proceeds of Mr. Briggs’ life insurance policies by virtue of the July 29, 2013 Document?

Positions of the parties

[17] The Estate Trustee takes the position that the July 29, 2013 Document and the August 8, 2014 Document are valid holograph Codicils to the Will. The Estate Trustee’s view is that the Notes Document was only a planning document and is not a valid testamentary instrument, nor part of a valid testamentary instrument as it is undated and unsigned.

[18] Regarding the issue of the life insurance policies in Mr. Briggs’ safety deposit box, the Estate Trustee has previously taken the position that the proceeds of the life insurance policies on Mr. Briggs’ life should be paid to the Estate of Mr. Briggs as Mr. Briggs’ named beneficiary was Mrs. Briggs, but she had predeceased him.

[19] Ms. Lockhart and the Governing Council of the Salvation Army of Canada, and The Canadian Institute for the Blind on whose behalf Counsel for Ms. Lockhart appeared as agent, take the position that the July 29, 2013 Document is a valid holograph Codicil. They submit that the August 8, 2014 Document is a two page document made up of the first page being the August 8, 2014 Document and the second page being the Notes Document and that those pages are a valid holograph Codicil. Further, Ms. Lockhart’s position is that she should be entitled to the share certificates and the proceeds of the life insurance policies on Mr. Briggs’ life which were in the safety deposit box as Mr. Briggs left the total contents of the safety deposit box to her.

Consents

[20] The solicitor for the Estate Trustee had sent a proposed Consent to all the beneficiaries declaring that the validity and contents of the July 29, 2013 Document and the August 8, 2014 Document have been proven and that they should be admitted to probate. All of the beneficiaries of the Will signed the Consent with the exception of Ms. Lockhart who took the position that the Notes Document should be found to be the second page to the August 8, 2014 Document and also be admitted to probate as part thereof. As a result, the Estate Trustee brought this Application for directions.

[21] Subsequently, Ms. Lockhart circulated a proposed Consent to all of the Respondents, being the beneficiaries under the Will, and the persons named in the August 8, 2014 Document and the Notes Document, which Consent provided that the July 29, 2013 Document and the August 8, 2014 Document including the Notes Document as page 2 of the August 8, 2014 Document should be admitted to probate as valid Codicils, and confirming that the total contents of the safety deposit box includes all share certificates and includes the beneficial ownership of the proceeds of all life insurance policies contained therein.

[22] Ms. Lockhart’s evidence is that she wrote to Mr. and Mrs. Longstone who reside in England in October, 2015 and provided a chronology of the matter and asked if they would each be willing to sign the Consent. She followed up by telephone call in early December, 2015 and Mrs. Longstone advised that she and her husband would discuss the matter. As agreed, Ms. Lockhart called back a couple of days later and Mrs. Longstone advised that she and her husband had signed the Consents and they were on their way back by mail. A signed Consent was received by Ms. Lockhart from both Mrs. and Mr. Longstone. All of the other Respondents also signed the Consent.

[23] Ms. Lockhart’s evidence was that in the meantime she was advised by her counsel that the counsel for the Estate Trustee felt that the terms of the Consent which Ms. Lockhart had circulated were insufficient so a Revised Consent was drafted and sent to all parties by Ms. Lockhart or her counsel. This Revised Consent contained similar terms to the consent previously circulated by Ms. Lockhart but with an additional term declaring the scheme of distribution and setting out what number of shares each of the residuary beneficiaries would receive after payment of $5,000.00 to Christine Rogerson and $10,000.00 to Erna Harper. This Revised Consent was signed and returned by all the Respondents except for Mrs. Jessie Longstone and Mr. Derek Longstone.

[24] Ms. Lockhart’s evidence is that on January 1, 2016 she received an email from Mrs. Jessie Longstone which stated:

TO WHOM IT MAY CONCERN

Myself Mrs Jessie and my husband Mr Derek Longstone from Sheffield wish it to be known that we are opting out of the decisions regarding codicils for the will of Franklyn Briggs.

Signed

Mrs Jessie Longstone Mr Derek Longstone

[25] Ms. Lockhart submits that the email is an indication from Mr. and Mrs. Longstone that they are waiving their right to participate in the hearing.

[26] Counsel for the Estate Trustee submits that there does not appear to be a universal consent to the position put forward by Ms. Lockhart, as not all parties executed the Revised Consent circulated.

[27] It is difficult for the Court to know what Mr. and Mrs. Longstone intended by their email.

[28] I find that since not all of the parties have consented to the position put forward by Ms. Lockhart it is therefore necessary to proceed with the Application for directions brought by the Estate Trustee.

Analysis

The July 29, 2013 Document

[29] The relevant sections of the Succession Law Reform Act, R.S.O. 1990, c S.26 are as follows:

Section 1(1) of the Act provides the following definition for a “will”

“will” includes,

(a) A testament, (b) A codicil, (c) An appointment by will or by writing in the nature of a will in exercise of a power, and (d) Any other testamentary disposition. (“testament”)

[30] Section 3 of the Succession Law Reform Act states that a will is valid only when it is writing.

[31] Section 4 of the Act provides for the formalities of execution of a will.

[32] Section 6 of the Act however, provides for holograph wills. It states that a testator may make a will wholly in his or her own handwriting, without formality, and without the presence of, or attestation or signature of a witness.

[33] An affidavit of Mr. Brigg’s physician who witnessed Mr. Briggs execute the July 29, 2013 Document was filed as part of the Application Record. The physician testified that he witnessed Mr. Briggs execute the July 29, 2013 Document and he identified the signature of Mr. Briggs and his own signature. The physician also stated that he was familiar with the handwriting of Mr. Briggs and that he verily believes that the July 29, 2013 Document is in the handwriting of Mr. Briggs. Although a diligent search was made for the original of the July 29, 2013 Document, it was never found.

[34] On the evidence before me, I find that the photocopy of the July 29, 2013 Document is a valid holograph codicil to the Will even though it is a photocopy, and that the photocopy of the July 29, 2013 Document should be admitted to probate on the basis that the validity and contents of the July 19, 2013 Document have been proved.

The August 8, 2014 Document

[35] The August 8, 2014 Document was written in pencil on the bottom of a photocopy of the July 29, 2013 Document and appears to be in the same handwriting as the July 29, 2013 Document. Mr. Briggs has put his written initials “FWB” and the date, “August 8, 2014” to the left of the paragraph about the disposition of the two single beds and the men’s clothing.

[36] Mr. Brigg’s physician identified the handwriting and signature of Mr. Briggs on the July 29, 2013 Document. I am satisfied that the handwriting on the August 8, 2014 Document is the same handwriting as in the July 29, 2013 Document and is the handwriting of Mr. Briggs. The August 8, 2014 Document is entirely in the handwriting of Mr. Briggs.

[37] I now deal with the issue of signature to the August 8, 2014 Document. Mr. Briggs put his initials beside the new paragraph which he inserted on the July 29, 2013 Document as “NOTE Further to the above”. I find that the initials of Mr. Briggs are in the same handwriting as his signature on the July 29, 2013 Document. These initials were placed to the left and beside the new paragraph added onto the photocopy of the July 29, 2013 Document. I find that the placing by Mr. Briggs of his initials beside the new paragraph was placed by him there to represent his name and that those initials constituted his signature.

[38] Section 7 of the Act sets out the requirements for the position of the signature as follows:

7.(1) In so far as the position of the signature is concerned, a will, whether holograph or not, is valid if the signature of the testator made either by him or her or the person signing for him or her is placed at, after, following, under or beside or opposite to the end of the will so that it is apparent on the face of the will that the testator intended to give effect by the signature to the writing signed as his or her will.

(2) A will is not rendered invalid by the circumstance that,

(a) the signature does not follow or is not immediately after the end of the will; (b) a blank space intervenes between the concluding words of the will and the signature; (c) the signature, (i) is placed among the words of a testimonium clause or of a clause of attestation, (ii) follows or is after or under a clause of attestation either with or without a blank space intervening, or (iii) follows or is after, under or beside the name of a subscribing witness; (d) the signature is on a side, page or other portion of the paper or papers containing the will on which no clause, paragraph or disposing part of the will is written above the signature; or (e) there appears to be sufficient space on or at the bottom of the preceding side, page or other portion of the same paper on which the will is written to contain the signature.

(3) The generality of subsection (1) is not restricted by the enumeration of circumstances set out in subsection (2), but a signature in conformity with section 4, 5 or 6 or this section does not give effect to,

(a) a disposition or direction that is underneath the signature or that follows the signature; or (b) a disposition or direction inserted after the signature was made.

[39] I find that the placement by Mr. Briggs of his initials beside the new bequests on August 8, 2014 complied with Section 7 of the Act.

[40] I find that the August 8, 2014 Document is a valid holograph Codicil to the Will and should be admitted to probate.

The Notes Document

[41] Ms. Lockhart had originally met Mr. and Mrs. Briggs in 2008 when she was employed as a Will and Estate Planner of the Bank of Nova Scotia Trust Company. She initially met them on behalf of the Bank of Nova Scotia Trust Company.

[42] Over the years, Ms. Lockhart and her parents and other of Ms. Lockhart’s family members developed a friendly relationship with Mr. and Mrs. Briggs. Mr. and Mrs. Briggs attended some of Ms. Lockhart’s extended family events.

[43] When Mr. and Mrs. Briggs’ Wills were executed in August, 2011, Ms. Lockhart was no longer working at the Bank of Nova Scotia Trust Company and she was not at all involved in the process of their Wills which were prepared by an independent solicitor.

[44] Over the ensuing years, as Mr. and Mrs. Briggs got older, Ms. Lockhart became more and more involved with assisting them as well as continuing to be their friend.

[45] It is the evidence of Ms. Lockhart that late in the summer or early in the fall of 2013, Mr. Briggs called her and asked her to come for a visit as he had something important to discuss with her. Ms. Lockhart states that Mr. Briggs told her that he had decided to update his Will and was leaving her a larger portion of the residue of his estate.

[46] Ms. Lockhart’s evidence is that at about the same time, Mr. Briggs provided her with the document dated July 29, 2013 which left the total contents of his house, the total contents of his safety deposit box, and his Volvo to Ms. Lockhart. Ms. Lockhart states that Mr. Briggs asked her to deal with all the household contents personally, which she agreed to do as Mr. Briggs explained that he did not want strangers from the trust company going through all his personal property and sending them off to auction or flea markets.

[47] Ms. Lockhart’s evidence was that Mr. Briggs told her that he planned to add specific cash bequests to his friend and housekeeper, Erna and to Christine who was hired to take him to appointments, shopping and other errands. Further Mr. Briggs told Ms. Lockhart that he was adding two gifts to charity.

[48] The evidence of Ms. Buchanan who is a Trust Officer of the Ottawa Office of The Bank of Nova Scotia Trust Company is that on October 24, 2014 she and Ms. Lockhart attended at Mr. Briggs’ home. While Ms. Lockhart was with her in the room in Mr. Brigg’s home which was used as an office, Ms. Buchanan found among several papers on Mr. Brigg’s desk the following items:

(a) The August 8, 2014 Document; (b) The original copy of page 1 only of a Will review letter from Scotiatrust to Franklin Briggs dated August 13, 2013; and (c) The Notes Document.

[49] Ms. Buchanan’s evidence is that to the best of her recollection those three documents were clipped together in the above order (front to back) with a paper clip. Ms. Buchanan stated that the Notes Document was not regarded as a testamentary document as it was considered to be the usual estate planning notes found among the personal papers of a deceased person. She went on to state that as the Notes Document was undated and unsigned and there was also evidence of erasures on the original Notes document, there was no reason to think that this document would be accepted as a testamentary document.

[50] The evidence of Ms. Lockhart contradicts the evidence of Ms. Buchanan regarding the documents found. Ms. Lockhart states that on October 24, 2024 she met the trust officer Ms. Buchanan at Mr. Briggs’ home. Ms. Lockhart was with Ms. Buchanan when the Notes Document was found in Mr. Briggs’ home office. Ms. Lockhart states that the Notes Document was found attached to the August 8, 2014 Document by paperclip and that there were no other papers attached.

[51] It is Ms. Lockhart’s position that the bottom portion of the August 8, 2014 document and the whole of the Notes document are actually the first and second page of one document, which Ms. Lockhart claims is a valid second Codicil to the Will. Her position is that this two page document complies with the changes Mr. Briggs told her he was planning to make to his Will and that they reflect his final testamentary intentions.

[52] In her Supplementary Affidavit, Ms. Lockhart filed as an exhibit a letter dated January 20, 2016, which was an unsworn document, addressed to “To whom It May Concern” from Ms. Christine Rogerson who was hired to help Mr. Briggs. The letter was regarding the location of certain documents on Mr. Briggs’ desk. She confirms Ms. Lockhart’s version of the Notes Document being the only document appended to the August 8, 2014 Document, as she had searched for Ms. Lockhart’s phone number on and in Mr. Briggs’ desk on the date he was admitted to hospital after a fall, as well as on two subsequent occasions, and Ms. Rogerson had seen those two documents appended together.

[53] Ms. Lockhart argues that there is no requirement that a testamentary document be signed or initialled on every page. She relies on her evidence that Mr. Briggs told her in 2013 that it was his intention to increase her share and to make two additional charitable bequests and that the Notes Document was reflective of those intentions.

[54] Mr. Briggs was an accountant and an educated person. On examining the July 29, 2013 Document and the August 8, 2014 Document, I find that Mr. Briggs used relatively formal language in each of these Codicils and identified each of the beneficiaries with their first and last name as well as identifying their place of residence. The July 29, 2013 Document was signed and dated, and Mr. Briggs had it witnessed by his physician.

[55] The August 8, 2014 Document was initialled by Mr. Briggs and dated. The August 8, 2014 Document finished at the end of the page and there was no indication that it was to be continued on another page. The page was not numbered.

[56] In contrast to the July 29, 2013 Document and the August 8, 2014 Document, the Notes Document starts in the middle of the page and has a list of names with first names only for the personal beneficiaries, and figures beside the names. There is evidence of erasures on the Notes document. There is no date on the Notes Document. There is no signature on the Notes Document. There is nothing on the Notes Document to indicate when it was written or that it was part of a larger document. There is no page number on the Notes Document. I find that the formalities observed by Mr. Briggs on the July 29, 2013 Document, and the August 8, 2014 Document are not observed by Mr. Briggs on the Notes Document.

[57] Mr. Briggs went to great pains in the August 8, 2014 Document to formally designate a beneficiary to a set of twin beds and a beneficiary to his clothing, and to initial and date that document. I find that it is not reasonable that Mr. Briggs would subsequently at the same time, on the same date, on the alleged second page of the August 8, 2014 Document, distribute the balance of his estate worth over a million dollars with such informality, such as not even using surnames for the beneficiaries, nor signing or dating the page. From the July 29, 2013 Document and the August 8, 2014 Document, it is apparent that Mr. Briggs knew that a testamentary document needed to be signed and dated.

[58] I am not satisfied that because the Notes Document was appended by a paper clip to the August 8, 2014 Document that it was part of that Document. I find that the Notes Document was not a second page to the August 8, 2014 Document, nor a part of that document at all. I find that the Notes Document is a planning document only and is not a valid holograph testamentary instrument.

[59] If I am incorrect in finding that the Notes Document is not part of the August 8, 2014 Document, I find that the Notes Document would not be given effect as it does not comply with Section 7 of the Act with respect to the position of the testator’s signature and in particular, Section 7 (3) set out above.

[60] As there is no signature on the Notes Document at all and the alleged disposition is underneath or follows the signature on the August 8, 2014 document, I find that any disposition or direction on the Notes Document should not be given effect.

Proceeds of Life Insurance Policies

[61] In the July 29, 2013 Document which I have now found to be a valid holograph Codicil, Mr. Briggs left the total contents of his safety deposit box at the Bank of Nova Scotia, 7 King Street West, Brockville, Ontario to Ms. Lockhart.

[62] In the safety deposit box the items of value found there were $11.00 U.S. currency, 95 Verizon shares having a date of death value in Canadian dollars of $5,345.79, and Frontier Comm shares which had a date of death value of $133.76.

[63] In the safety deposit box were also found three life insurance policies on Mr. Briggs’ life with London Life Insurance Company. The total payout of the three life insurance policies was $60,342.46.

[64] A life insurance policy on the life of Mrs. Briggs with London Life Insurance Company was also found in the safety deposit box, which life insurance policy had been paid out to Mr. Briggs after the death of Mrs. Briggs.

[65] Mr. Briggs had designated Mrs. Briggs with London Life Insurance Company as beneficiary to all of his life insurance policies.

[66] It is the position of Ms. Lockhart that she should be entitled to the total contents of the safety deposit box which she argues should include the share certificates and the proceeds of Mr. Briggs’ life insurance policies with London Life Insurance Company.

[67] Subsequent to the hearing of this application, I wrote to Counsel noting that none of the parties had made any reference to or any submissions regarding what implications, if any, the Insurance Act has with respect to the issue of the beneficiary of the life insurance policies. I advised Counsel that I intended to consider whether the Insurance Act had any application in this matter and I invited Counsel to submit to me written submissions and any case law relied upon by April 1, 2016.

[68] Counsel for the Estate Trustee submitted written submissions and case law, and Counsel for Ms. Lockhart submitted a Supplementary Factum on this issue.

[69] It is the position of the Estate Trustee that the July 29, 2013 Document is not a “declaration” that meets the requirements of Section 171(1) of the Insurance Act, R.S.O. 1990 c. I.8 as the contract of insurance is not described therein. Accordingly, the Estate Trustee submits that the proceeds of the insurance policies were properly paid to the Estate of Mr. Briggs.

[70] The Estate Trustee states that there may be a question of whether the Estate Trustee by virtue of the July 29, 2013 Document holds those insurance proceeds in trust for Ms. Lockhart as beneficial owner. The Estate Trustee submits that the Court must determine on the particular facts of this case whether it was the testamentary intention of Mr. Briggs that Ms. Lockhart should receive the proceeds of the life insurance policies. Counsel for the Estate Trustee stated that in light of the neutrality of the Estate Trustee, counsel for the Estate Trustee must abstain from arguing this factual issue for one side or the other.

[71] Ms. Lockhart’s position is that as noted in Re Stark, [1969] 2 O.R. 881, there is a well-known principle that the Court should endeavour to give effect to all of the words to be found in a testamentary document. In that regard Ms. Lockhart submits that Mr. Briggs’ use of the phrase “total contents” must be given some meaning. She submits that Mr. Briggs would have been aware of the contents of his safety deposit box and that he would have anticipated that the proceeds of the insurance policies on his life as well as the share certificates would pass to Ms. Lockhart on his death.

[72] Ms. Lockhart submits that the Court must look to the dominant intention of the Testator and should endeavour to consider the position of the testator at the time when the Will was made which is often referred to as “sitting in the Testator’s chair”.

[73] Ms. Lockhart argues that the July 29, 2013 Document constitutes a sufficient insurance declaration pursuant to the Insurance Act as a person doing a holograph will would not be expected to comply with the same standards and formalities as in a formal Will drafted by lawyers.

[74] Alternatively, Ms. Lockhart submits that even if the wording was not a sufficient declaration for the purposes of Mr. Briggs’ insurers, it was the clear and expressed intention of Mr. Briggs that the total contents of the safety deposit box were to pass to Ms. Lockhart. Thus, Ms. Lockhart argues that the Estate Trustee is obliged to honour Mr. Briggs’ intentions by paying the insurance proceeds to Ms. Lockhart.

[75] Subsections 190(1) and (2) of the Insurance Act state:

190. (1) An insured may in a contract or by a declaration designate the insured’s personal representative or a beneficiary to receive insurance money. (2) Subject to section 191, the insured may from time to time alter or revoke the designation by a declaration.

[76] Section 171(1) of the Insurance Act provides the following definitions applicable to Section 190(1):

“beneficiary” means a person, other than the insured or the insured’s personal representative, to whom or for whose benefit insurance money is made payable in a contract or by a declaration;

“contract” means a contract of life insurance;

“declaration” means an instrument signed by the insured,

(a) with respect to which an endorsement is made on the policy, (b) that identifies the contract, or (c) that describes the insurance or insurance fund or a part thereof,

in which the insured designates, or alters or revokes the designation of, the insured’s personal representative or a beneficiary as one to whom or for whose benefit insurance money is to be payable;

“instrument” includes a will;

“insured”

(a) in the case of group insurance, means, in the provisions of this Part relating to the designation of beneficiaries and the rights and status of beneficiaries, the group life insured, and (b) in all other cases, means the person who makes a contract with an insurer; (“assuré”)

“will” includes a codicil. (“testament”)

[77] Section 194(1) of the Insurance Act provides:

194. (1) Where a beneficiary predeceases the person whose life is insured, and no disposition of the share of the deceased beneficiary in the insurance money is provided in the contract or by a declaration, the share is payable,

(a) to the surviving beneficiary; or (b) if there is more than one surviving beneficiary, to the surviving beneficiaries in equal shares; or (c) if there is no surviving beneficiary, to the insured or the insured’s personal representative.

[78] The evidence before me is that Mr. Briggs designated Mrs. Briggs as the beneficiary of his insurance policies with London Life Insurance Company. When Mrs. Briggs died in February 2012, the beneficiary of Mr. Briggs’ life insurance policies became Mr. Briggs’ personal representative pursuant to the operation of Section 194(1)(c).

[79] The issue before me now is whether the July 29, 2013 Document, which I have found to be a valid Codicil, is a valid declaration as defined by Section 190(1) of the Insurance Act such that the beneficiary of the policies is changed from Mr. Briggs’ personal representative to Ms. Lockhart and that Ms. Lockhart should receive the proceeds of the life insurance policies on Mr. Briggs’ life.

[80] I find that the July 29, 2013 Document, (which I have found to be a valid Codicil) with its reference to “the total contents of my safety deposit box”, is not a valid declaration of the proceeds of Mr. Briggs’ insurance policies to Ms. Lockhart as the wording of the July 29, 2013 Document fails to comply with the requirements of the definition of “declaration” set out in Section 171 of the Insurance Act.

[81] The July 29, 2013 Document does not identify any insurance contract nor is there any description of the insurance fund. In fact, the July 29, 2013 Document does not have any mention whatsoever of insurance in it.

[82] Accordingly, I find that there was no change of beneficiary of Mr. Briggs’ life insurance policies as a result of the July 29, 2013 Document and that the Estate of Mr. Briggs is entitled to the proceeds of those life insurance policies.

[83] I turn now to Ms. Lockhart’s argument that the Estate Trustee is holding the life insurance proceeds in trust for her as it was Mr. Brigg’s intention that she receive them.

[84] In the July 29, 2013 Document, Mr. Briggs seemed to be primarily focused on physical possessions. Mr. Briggs states in the July 29, 2013 Document that “I can but hope that Elizabeth will find good homes for such of these treasures as are surplus to her own requirements” and then he went on to talk about his “much-loved” Volvo.

[85] In my view, Mr. Briggs when referring to “treasures” was unlikely to be referring to the proceeds of his life insurance policies when using such a term. This view that Mr. Briggs was referring to personal possessions which had personal meaning to him also accords with Ms. Lockhart’s evidence that Mr. Briggs told her he did not wish strangers from the Trust Company to go through his personal belongings and dispose of them at an auction or flea market.

[86] I am not satisfied that the July 29, 2013 Document contains any fixed and final intention that Mr. Briggs intended to leave the proceeds of his life insurance policies to Ms. Lockhart by means of the July 29, 2013 Document.

[87] I find that the Estate Trustee received the proceeds of the life insurance policies on Mr. Briggs’ life in accordance with Section 194(1) of the Insurance Act and that the Estate Trustee is not holding those life insurance proceeds in trust for Ms. Lockhart.

[88] Counsel for the Estate Trustee advised the Court in his submissions that there was no issue that the share certificates in the safety deposit box should be transferred to Ms. Lockhart, which accords with Ms. Lockhart’s position. The issue as to whether those share certificates should be transferred to Ms. Lockhart was not one of the questions put to me for directions by the Estate Trustee in the Estate Trustee’s Application. Accordingly, I have not dealt with that matter.

Order

[89] In summary, the Answers to the questions put forward by the Applicant Estate Trustee in paragraph 14 are as follows:

(a) Yes, the photocopy of the July 29, 2013 Document is a valid holograph Codicil to the Will. (b) Yes, the photocopy of the July 29, 2013 Document should be admitted to probate on the basis that the validity and contents of the July 29, 2013 Document have been proved. (c) Yes, the August 8, 2014 Document is a valid holograph Codicil to the Will. (d) Yes, the August 8, 2014 Document should be admitted to probate on the basis that the validity and contents of the August 8, 2014 Document have been proved. (e) No, the Notes Document is not a valid holograph testamentary instrument. (f) As the answer to Question (e) was No, it is not necessary to answer this question. (g) As the answer to Question (e) was No, the Notes Document should not be admitted to probate. (h) No, Elizabeth Lockhart should not be entitled to the proceeds of the deceased’s life insurance policies by virtue of the July 29, 2013 Document.

Costs

[90] Counsel for the Estate Trustee stated in submissions that the Estate Trustee is seeking its costs of this Application on a full indemnity basis and seeking that those costs be paid from the Estate of Mr. Briggs.

[91] Counsel for Ms. Lockhart, who also appeared as agent for the Governing Council of the Salvation Army of Canada and for the Canadian National Institute for the Blind, submitted that his client Ms. Lockhart and the aforesaid two charities are also seeking that their costs on this matter be paid from the Estate of Mr. Briggs.

[92] The Estate Trustee may make written submissions as to the issue of costs of no more than three typewritten pages plus a Bill of Costs by July 18, 2016. Ms. Lockhart and the aforesaid charities may make written submissions as to the issue of costs of no more than three typewritten pages plus a Bill of Costs to be served and filed by August 17, 2016. The Estate Trustee may serve and file a Reply of no more than two typewritten pages to be served and filed by August 31, 2016. If no submissions as to costs are served and filed within the aforesaid time limits, there shall be no order as to costs.

Madam Justice A.C. Trousdale Released: June 17, 2016