Court File and Parties

COURT FILE NO.: CV-18-78 DATE: 20190212

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Tammy Crawford Applicant

Tetyana Ivanina, for the Applicant

- and -

Tracey Culbert, Terry Kempel and Tina Schnurr, Estate Trustees of the Estate of Hannah Mary Ann Kempel Respondents

Madchen V.J. Funk for the Respondents Terry Kempel and Tina Schnurr

HEARD: February 8, 2019

REASONS FOR JUDGMENT

Sproat J.

I. Introduction

[1] This is an application by Tammy Crawford seeking authorization for her to purchase what is referred to as the “Farm Property” from the Estate of her mother Hannah Kempel. This is contested by the Respondent Terry Kempel, the son of the deceased, who claims that he has the right to purchase the Farm Property.

[2] The other Respondents Tracey Culbert and Tina Schnurr are the remaining two children of the deceased. Tina was represented on this Application by Ms. Funk and supports the position of Terry Kempel. Tracey Culbert was not represented on the Application but the evidence indicates she too disputed the right of Terry Kempel to purchase the Farm Property.

[3] The Applicant and the three Respondents were all appointed as Estate Trustees by the Will of Hannah Kempel. In the material filed the parties were referred to by their first names and I will do the same.

II. The Evidence

[4] Hannah’s Will provided that Terry would have a first option to purchase the Farm Property for $200,000. According to the Will Terry had 30 days, “from the date that express written notice from my Trustees of the option is given to him”, to exercise the option failing which the option would be null and void.

[5] The following chronology is not in dispute:

(a) February 20, 2018 – Hannah died.

(b) February 26, 2018 the four siblings – Estate Trustees attended Hannah’s home and located an unexecuted document which purported to be Hannah’s Will made November 23, 2017. (As of February 26, 2018 none of the Estate Trustees had seen the actual Will.) Tina read the Will out loud.

(c) February 27, 2018 Tammy, Tracey and Tina obtained a notarial copy of the Will from the law firm that had drafted the Will. A notarial copy of the Will was not provided, or shown, to Terry.

(d) March 27, 2018 – Tammy texted Terry:

We need to get things resolved with the farm, have you decided yet what you are doing?

Terry replied that he did not intend to purchase the Farm Property, “because the way everyone feels”.

(e) March 31, 2018 – the parties met again at the Farm Property.

(f) April 6, 2018 – the parties met at the office of Ms. Fischer, the lawyer who had drafted the Will. This was the first time that Terry learned that Hannah’s Will was in fact in the form of the unexecuted document found at the Farm Property on February 26, 2018.

(g) April 9, 2018 – Ms. Fischer sent a reporting letter to all of the Estate Trustees which stated in part:

The requirement for “written notice” of the 30 days set out in the Will is redundant given that Terry is a named executor. At our meeting you explained that the 30 days had technically expired given you collectively read your mother’s Will together at an earlier date; however, I explained that you may consider calculating the 30 day time period from the date you all met at my office (April 6, 2018).

(h) April 26, 2018 – Terry advised Ms. Fischer of his intention to exercise the option to purchase the Farm Property.

(i) April 27, 2018 – Tracey wrote Ms. Fischer and advised that her position was that the 30 day period had commenced February 26, 2018 so that Terry’s option had expired. Tammy, at about this time, sent Ms. Fischer an undated letter taking the same position.

(j) May 3, 2018 – Ms. Fischer wrote the parties indicating that due to their conflicting positions she had a conflict and so ended her involvement.

(k) September 18, 2018 – Dakota Culbert (Tracey’s son) offered to purchase the Farm Property for $300,000.

(l) September 24, 2018 – Tammy offered to purchase the Farm Property for $200,000 purportedly pursuant to the provisions of the Will.

[6] While there was some conflicting evidence as to who said what, it was common ground that harsh words were exchanged and emotions were charged from February 26, 2018 when the unexecuted form of Will was read up to and following the April 6, 2018 meeting with Ms. Fischer.

III. Analysis and Conclusion

[7] Hannah intended that Terry have an option to purchase and her Will provided that the 30 day option period commenced on the date he received “express written notice” of the option. That language was apt and served to address the very problem we are now concerned with.

[8] I have no difficulty in concluding that Tina reading from an unexecuted document on February 26, 2018 (at a time when none of the parties had seen Hannah’s Will) does not constitute the “express written notice” of the option to Terry that the Will stipulated would serve to start the 30 day option period.

[9] I am also satisfied that nothing Terry did or said up to April 6, 2018 can constitute an effective waiver of his entitlement to the option. In this regard, during this time period:

(a) He did not know for a fact the form of any Will made by Hannah.

(b) He had no legal advice.

(c) Cryptic communications were exchanged in an emotionally charged situation.

[10] I need not decide whether Ms. Fischer was correct that the requirement for 30 days written notice was redundant given that Terry was an executor. The fact he was an executor is evident from the Will itself but the written notice requirement was still included. In any event, that point is academic as Terry certainly exercised the option within 30 days of April 6, 2018 which, in my view, was the earliest date that the 30 day period could have commenced.

[11] The fact that no agreement has been entered to date by reason of the disagreement among the Estate Trustees, and their consequent failure to discharge their duty to enter an agreement. The Estate Trustees obviously cannot rely upon their own default to nullify the option.

[12] My conclusion, therefore, is that Terry has properly exercised the option. The Estate Trustees are obliged, according to the Will, to enter into an agreement for Terry to purchase the Farm Property for $200,000.

[13] There was evidence as to events that preceded Hannah’s Will and as to the appraised value of the Farm Property. This evidence is not, however, relevant to the interpretation of the Will. Further, it was Hannah’s prerogative to grant the option to purchase at a price of her choosing.

[14] If the parties cannot agree on costs, Ms. Funk shall provide written cost submissions within 20 days and Ms. Ivanina shall respond within a further 15 days. Ms. Funk shall provide any reply within a further 5 days.

Sproat J. Released: February 12, 2019