COURT FILE NO.: 3711/17 DATE: 2019-07-23 ONTARIO SUPERIOR COURT OF JUSTICE

IN THE MATTER OF the Estate of Frances Irene Wheeler, deceased

BETWEEN:

DEBORAH LOVE AS ESTATE TRUSTEE UNDER THE LAST WILL AND TESTAMENT OF MARTIN DOUGLAS WHEELER, DECEASED, DEBORAH LOVE and STEEPROCK DISTRIBUTING INC. Applicants – and – HAROLD WILLIAM WHEELER ALSO KNOWN AS BILL WHEELER, PERSONALLY AND AS ESTATE TRUSTEE UNDER THE LAST WILL AND TESTAMENT OF FRANCES IRENE WHEELER Respondents

Robert D. Malen, for the Applicants Monty Thomas Hyde, for the Respondents

HEARD: March 4, 2019

Chozik J.

Overview

[1] In estate matters, the court’s role is to give effect to the testamentary intention of the testator as expressed in a will. Frances Irene Wheeler died in 2012. She bequeathed a parcel of land to her two sons, Harold William Wheeler (“Bill”) and Martin Douglas Wheeler (“Martin”). Her Will states that the land was to go to Bill and Martin, “jointly or the survivor of them”. The question in this case is whether she meant to leave the property to Bill and Martin as joint tenants or as tenants in common. If the two brothers took title to the property as joint tenants, then upon the death of one, title would pass to the surviving brother. If the two brothers took title as tenants in common, then title to their respective portions of the property could pass to their estate.

[2] Martin died in 2015. Before he died, he and Bill agreed in a written contract to seek approval to divide the property inherited from Frances. The Ontario Municipal Board (“OMB”) issued a conditional approval of the division. Martin died just two weeks later. After Martin died, Bill took no further steps to comply with the OMB’s conditions. In April 2017 Bill had the title to the property transferred to himself. Had the approval process been completed and the severance finalized before Martin died, then Deborah Love – Martin’s common-law spouse of 16 years – would benefit from Martin’s estate.

[3] Deborah Love brings this application for a declaration that Martin’s estate is entitled to an undivided one-half interest in the property inherited from Frances, and that Bill wrongly appropriated it. She argues that Bill was contractually bound to seek the division of the property. He should not benefit from his own failure to carry out his contractual obligation. She also argues that the Frances’ Will created a tenancy in common, so Martin’s half interest should properly pass to his estate. She points to the fact that the brothers thought that the Will created a tenancy in common and proceeded accordingly in their October 2013 agreement. Ms. Love argues that the extrinsic evidence surrounding the making of the Will, including a prior Will of February 2009, also support a finding that Frances intended her sons to take title to the property as a tenants in common.

[4] Bill argues that the October 2013 agreement between the brothers did not intended to extend a benefit Ms. Love, a third party to the agreement. His contractual obligations did not survive Martin’s death. Bill also argues that he could not satisfy the OMB conditions, and so the agreement would have been null and void in any event. Bill argues that Frances’ Will created a joint tenancy. Bill argues that the joint tenancy was not severed by the October 2013 agreement.

[5] In my view, the pivotal legal issue to be decided is whether Frances intended to leave the property to Bill and Martin as joint tenants or as tenants in common.

[6] I have concluded that Frances’ intention was to leave the property to Bill and Martin as tenants in common. This intention is clear from the Will when it is read as a whole, taking into account some of the extrinsic circumstances surrounding the Will. Therefore, Ms. Love, in her capacity as the Trustee for Martin’s estate, is entitled to a declaration that Bill wrongly appropriated Martin’s half interest in the property.

[7] Even if the Will created a joint tenancy, the October 2013 agreement severed it. Deborah Love would be entitled to the same relief.

[8] In light of this conclusion, it is not necessary for me to determine the other issues raised with respect to the October 2013 agreement.

Background Facts

[9] Frances had owned the property since 1963. She initially bought 17 acres, and built her home on it. In 1974, Frances had the land severed in three parcels. The southerly 4.8-acre parcel was transferred to Bill, the northerly 2-acre parcel to Martin. Both Bill and Martin built their homes on their respective properties. Frances retained the middle parcel, and continued to live on it until 2010 when she moved to a retirement residence. She died on October 23, 2012.

[10] In her last Will, dated June 23, 2009, Frances bequeathed the middle parcel of land to her two sons in the following terms:

3. I give all my property whatsoever situate, including any property over which I may have a general power of appointment to my Trustees upon the following trusts… (c) To transfer my house and property [legal description of property omitted] to my sons, Martin Douglas Wheeler and Harold William Wheeler, jointly or the survivor of them , for their own use absolutely. [Emphasis added]

[11] This Will was drafted by Richard Howitt, Q.C. The June Will was one of at least seven wills drafted by Mr. Howitt for Frances. For the purpose of this application, the parties agree that this was her last Will.

[12] On this application, Mr. Howitt testified that the word “jointly” did not mean as “joint tenants”, but as “equally” or “50/50”. Frances had previously from time to time changed her mind about how to deal with this property. In previous wills she had left it solely to Martin, to both Martin and Bill as joint tenants, and once, if Martin predeceased her, she left it to her grandson Kyle (Bill’s son). Mr. Howitt testified that in April 2005 he had explained to Frances the difference between joint tenancy and tenancy in common. Mr. Howitt testified that in the June 2009 Will, it was Frances’ intention to benefit both Bill and Martin equally, and not as joint tenants.

The Earlier February 2009 Will

[13] Significantly, Bill and Martin saw the June 2009 Will as substantively the same as an earlier Will – the February 2009 Will – drafted by a different lawyer. The February Will appointed Bill and Martin as the Trustees. In it, Frances expressed that she helped both of her sons financially and otherwise over the years, and that she forgave and discharged any obligations either might have to her estate. She stated that she wished it to be known that she tried to be as fair to her sons during her lifetime as she could, having regard to family circumstances as they arose from time to time.

[14] She then directed that the residue of her estate be divided equally between Bill and Martin, or be paid to the survivor if only one of them shall survive her. If either of them predeceased her, then any issue of the deceased that was still living upon her death should take in equal shares per stirpes the share of the residue of her estate to which the deceased person would have been entitled if living at her death.

[15] With respect to the middle parcel of land that is the subject matter of this litigation, Frances stated in her February Will that she would like to think that her two sons could reach “a mutual and amicable agreement” in dealing with that land. She made several suggestions, including that they make an application to sever the land. If they were unable to agree on a mutually satisfactory method of dealing with the middle parcel within twelve months of her death , the Will provided that the property should be sold with the proceeds falling into the residue of her estate (and being divided equally between Bill and Martin).

The October 2013 Agreement Between Bill and Martin

[16] In accordance with the February 2009 Will, exactly twelve months after Frances’ death, Bill and Martin agreed in writing how to deal with the inherited property. In their October 2013 agreement, Bill and Martin stated that they were prepared to accept that both Wills (February 2009 and June 2009) were valid. Indeed, they agreed that the two wills were “the same”. Their written agreement expressly intended to resolve their disputes regarding the validity of the last will and purported misappropriation of funds from Frances’ estate, which each alleged against the other. Regardless of which Will was probated, the Agreement provided that the estate was to be administered and distributed in accordance with this Agreement. Bill and Martin agreed to make an application to the Town to sever the inherited property into two separate parcels.

[17] The Agreement specifically provided that Bill was to do the work related to the land severance application and that he was responsible for paying those fees. Martin was tasked with paying other legal fees and taxes. There is no evidence that Martin failed to live up to his end of the bargain.

[18] The Agreement also provided that if consent to sever was not obtained for any reason, the Agreement was null and void and would not prejudice the parties in contentious proceedings about Frances’ Will.

[19] Bill carried out part of what he was obligated to do. He applied to the Township to divide the property and then appealed to the OMB. On September 2, 2015 the OMB consented to the division of the land conditional on the fulfilment of six conditions. Two weeks later, on September 17, 2015, Martin died. Since Martin’s death, Bill has taken no steps to satisfy the OMB’s conditions.

[20] Had the severance gone through before his death, Martin would have acquired a portion of the property to be added to his lot and Bill would have acquired a portion to be added to his lot. If the OMB’s conditions could not be met, the brothers could have sold the property and divided the proceeds as suggested in Frances’ February 2009 Will. Instead, in April 2017 Bill had the entire property transferred to himself. Bill takes the position that he was entitled to do so because Frances’ June 2009 Will created a joint tenancy.

Did Frances intend to leave the land to Bill and Martin as joint tenants or as tenants in common?

[21] The fundamental purpose of the law of wills is to give effect to testamentary intention. To determine the intention of the testator, the court must apply the “armchair rule”. This rule requires the judge to place him or herself in the position of the testator at the time when the last will was made, and to consider and weigh the circumstances which then existed, and which might reasonably be expected to influence the testator in the disposition of her property. The judge must have regard to the whole contents of the will and consider the provisions and language therein to try to find what intention was in the mind of the testator (Burke (Re), [1960] O.R. 26 (Ont. C.A.), at p. 30, cited in Kaptyn Estate (Re), 2010 ONSC 4293, 102 O.R. (3d) 1, at para. 30; Marion v. Marion (2009), 49 E.T.R. (3d) 128 (Ont. S.C.), at paras. 23-28).

[22] The primary evidence of a testator’s intention is the will. In some circumstances, to ascertain the meaning of the words used in the will, the court may look to extrinsic evidence. This is permissible even where language in the will appears clear and unambiguous. Sometimes ambiguity is only apparent in light of surrounding circumstances. Surrounding circumstances may include indirect extrinsic evidence regarding the character and occupation of the testator, the amount, extent and condition of her property, as well as the number, identity, and general relation of the immediate family and relatives of the testator. (Feeney’s Canadian Law of Wills, Fourth Edition, Chapter 10, Lexis Nexus, 2000, para. 10.57, cited by Warkentin J. in Marion v. Marion).

[23] Extrinsic evidence of direct intention is ordinarily not admissible. (Rondel v. Robinson Estate, 2011 ONCA 493, 106 O.R. (3d) 321, at paras. 27-30) This includes instructions the testator gave her solicitor or evidence of third parties attesting to the testator’s intentions. Evidence of third parties, who cannot directly discern the mind of the testator, is logically incapable of directly proving the testator’s intent [at para. 37] Sound policy objectives underlie this rule: the routine admission of evidence of third parties about the testator’s intentions would create uncertainty and estate litigation if disappointed beneficiaries could challenge a will based on their belief that the testator had different intentions than those manifested in a will. (Rondel v. Robinson Estate, at paras. 27-30.)

[24] There are exceptions to the rule. If there is equivocation in the will, then direct evidence of intention may be relied on. (Rondel v. Robinson Estate, at paras. 29-31). This exception does not apply in this case.

[25] Equivocation exists only where the words of the will, read in light of the whole will, or when construed in light of the surrounding circumstances, apply equally well to two or more persons or things. In such cases, extrinsic evidence of the testator’s actual intention may be admitted and will usually resolve the equivocation (Feeney, Thomas G., The Canadian Law of Wills: Volume 2, Construction, 2nd ed. (Toronto: Butterworths, 1982), at p. 56; cited with approval in Rondel v. Robinson Estate, at para. 29).

[26] Equivocation is not to be equated with ambiguity or mere difficulty of interpretation (Rondel, at para. 30, citing Bruce Estate (Re), [1998] Y.J. No. 70 (S.C.). Other principles articulated in Rondel warn against exceeding the scope of admission of evidence in interpretation contradicting the actual term of the will (at paras. 32-37).

[27] I am of the view that the statement of Mr. Howitt that Frances did not intend to bequeath the property to Bill and Martin as joint tenants is not admissible. This statement amounts to direct evidence as to the intentions of the testator. There is no equivocation in the Will that would permit reception of this evidence.

[28] Bill argues that his mother intended to leave the property to him and Martin as joint tenants. Martin was not well. Bill relies on the evidence of Mr. Howitt to conclude that Frances was of the view that Martin could not look after her house. Martin had no children. Frances wanted Martin to have the benefit of the property while he was alive, but she also wanted the property to remain for the benefit of future Wheelers. Mr. Howitt had explained to her what a joint tenancy was, and therefore in using the word jointly or the survivor of them she intended that Bill and Martin take title to the property as joint tenants.

[29] In my view, these arguments are ultimately unpersuasive.

[30] Frances could not have meant to leave the property to Bill and Martin as joint tenants. The plain wording of the Will shows that Frances’ intended to benefit both her sons. Her prior wills, and the evidence of Mr. Howitt about the circumstances at the time of the making of the wills, demonstrate that she also wanted to benefit future generation of Wheelers. In a joint tenancy, the property would pass to Bill and Martin jointly, and upon the death of one of them, it would then pass to the survivor. Martin did not have any children. Frances was concerned with leaving some legacy for future generations of Wheelers. A joint tenancy would not necessarily accomplish this. If Bill and Martin took title to the property as joint tenants, and Bill predeceased Martin, then all of the property would pass to Martin. Bill’s children and future generations of Wheelers would be disentitled to any of the property. Frances did not want this. No one can predict nor assume the timing of death with any certainty. Frances knew this. In my view, a joint tenancy would be inconsistent with Frances’ intention to benefit future generations of Wheelers. Frances must have intended for Bill and Martin to take title to the property as tenants in common.

The Context of the Provision in the Will as a Whole

[31] The provision at issue – “jointly or the survivor of them” - must be regarded in the context of the Will as a whole. Bill’s interpretation of these words is inconsistent with the meaning to be ascribed to the words in their ordinary meaning considered in context.

[32] The June 2009 Will used the term “jointly or the survivor(s) of them” in multiple paragraphs. In none of these other paragraphs could these words reasonably be interpreted as creating a right of survivorship. In para. 2 of the Will, Frances appointed Martin, Bill and her friend Branda Sisnett “jointly or the survivor(s) of them” to be executors and estate trustees. “Jointly or the survivor of them” must mean “equally” and whoever did not predecease Frances. In other words, if one or more of the trustees predeceased her, then whoever was still living would be the trustees.

[33] Similarly, in paragraph 3(b), the Will directs that the household contents of Frances’ home is to be divided equally between her sons or “the survivor of them”. This clearly is not creating a joint tenancy. Rather, it intends that the household contents be divided between Bill and Martin, or if one of them predeceases Frances, go to the son who survives her.

[34] In 4(a) she directs that the residue of the estate is to be divided into two equal shares. One share is to go to Martin for his use absolutely, unless he predeceased her in which case Martin’s share would go to Bill. She directs that if Bill predeceased her, then Bill’s share of the estate would be divided amongst Bill’s children.

[35] In my view, Frances’ focus was on dividing her estate amongst those who survived her. The pivotal factor for Frances was whether both her sons survived her. If both survived her, then they would take equally. If only Bill survived her, then he would take all. If only Martin survived her, then Bill’s share would go to his children. In this way, her wish was that her sons share equally in her estate, while at the same time benefiting future generations of Wheelers.

[36] This interpretation is supported by the clear language in the February 2009 Will. There, the word “equally” instead of “jointly” is used. This intention is also consistent with many of the other wills Frances signed in her 90’s. None of them gave Bill a sole right of survivorship.

[37] Although for this application, Bill accepted the June 23, 2009 Will as the valid Will, the October 2013 Agreement between the brothers treats the June 2009 and February 2009 wills as the same. The February 2009 Will created a tenancy in common. The October 2013 Agreement treated the June 2009 as having created a tenancy in common. The October 2013 Agreement is strong evidence that both Bill and Martin understood the Will to mean that they were to take title to the property as tenants in common. It was only the timing of Martin’s death that intervened in the vesting of the property as tenants in common.

[38] Having regard to the wording of the Will as a whole, and the limited extrinsic circumstances surrounding the making of the Will, I am of the view that Frances’ intention was to bequeath the property to Bill and Martin as tenants in common. This is the only reasonable interpretation of the Will.

Did the October 2013 Agreement Sever a Joint Tenancy?

[39] If, however, the Will created a joint tenancy, then in my view the October 2013 Agreement severed that joint tenancy in any event. There are three ways in which a joint tenancy is severed:

Rule 1: unilaterally acting on one’s own share, such as selling or encumbering it; Rule 2: a mutual agreement between he co-owners to sever the joint tenancy; and Rule 3: any course of dealing sufficient to intimate that the interests of all were mutually treated as constituting a tenancy in common.

(Jansen v. Niels Estate, 2017 ONCA 312, 137 O.R. (3d) 709, at para. 23; citing Hansen Estate v. Hansen, 2012 ONCA 112, 109 O.R. (3d) 241 at para. 34)

[40] In dealing with the third rule, the court is required to discern whether the parties intended to mutually treat their interests in the property as constituting a tenancy in common. The court must look at the totality of the evidence in making this assessment. (Jansen v. Niels Estate, at paras. 33-36; Hansen Estate v. Hansen, at para. 7).

[41] In my view, Bill and Martin’s course of conduct with respect to the property establishes beyond any question that they intended to deal with the property as tenants in common. The October 2013 agreement manifests their intention to divide the property and to deal with it in this way. By entering into this agreement, Bill and Martin engaged in a course of conduct that severed the joint tenancy, if one ever existed.

Orders Granted

[42] As a result, an Order shall issue declaring that Martin’s Estate is entitled under the Will of his late mother, Frances Irene Wheeler, to an undivided one-half interest in the property, and declaring that this undivided one-half interest was wrongfully appropriated by Bill.

[43] The Land Registrar is to register the Property in the names of Deborah Love and Harold William Wheeler as tenants in common.

[44] Within 60 days of this decision, the property is to be appraised. If the parties cannot agree on an appraiser, each can retain an appraiser of their choice at their own expense. Within 90 days of that appraisal, one half value of the property is to be paid by Bill to Martin’s Estate. Should Bill require an extension of the time, he must seek a direction from this court.

[45] It is further ordered that Deborah Love be permitted to attend on Bill’s property to remove chattels (including vehicles, equipment, tools, etc.) belonging to Martin or to his company upon 48 hours’ notice to Bill.

[46] The parties may bring a motion for directions before me should any difficulties arise in carrying out the terms of this Order.

Costs

[47] The parties are encouraged to agree upon appropriate costs for this motion. If the parties are not able to agree on costs, they may make brief written submissions to me (maximum two pages double-spaced, plus a bill of costs). The Applicants may have 14 days from the release of this decision to provide submissions, with a copy to the Defendants; the Defendants a further 14 days to respond; and the Applicants a further 7 days for a reply, if any. If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs as between themselves. If I have not received response or reply submissions within the specified timelines after the Applicants’ initial submission, I will consider that the parties do not wish to make any further submissions and I will decide on the basis of the material that I have received.

Chozik J.

Released: July 23, 2019