Re Vaudrey, 2019 ONSC 7551

COURT FILE NO.: 19-38793-ES

DATE: 2019/12/31

SUPERIOR COURT OF JUSTICE – ONTARIO

IN THE ESTATE OF WILLIAM JOHN VAUDREY, Deceased

RE: KRISTIN VAUDREY (Applicant)

BEFORE: Madam Justice Sylvia Corthorn

COUNSEL: Ronald J. Boivin, for the Applicant

HEARD: December 19, 2019

REASONS FOR DECISION

Background

1William J. Vaudrey (“the Deceased”) died in September 2018. At the date of his death, he was living in a long-term care facility.

2Mr. Vaudrey’s estate (“the Estate”) is said to have a value of approximately $95,000. The Office of the Public Guardian and Trustee (“PGT”) has been managing the Deceased’s affairs. The PGT has control of these funds, pending a further order of the court.

3The Deceased was married to Ethel Vaudrey. She died in January 2007. The couple had two children, Sheila M. Vaudrey and Kristin. Both children were adopted. Sheila died in September 2013. She never married and did not have any children.

4Kristin’s parents separated when she was 12 years old. She became estranged from the Deceased at that time. Kristin describes the Deceased as having been both emotionally and verbally abusive to Ethel, Sheila, and Kristin.

5Kristin presents the court with a will said to have been executed by the Deceased in 2005 (“the Will”). The Will was witnessed by Sheila and by L.M. McElligott. No efforts have been made on Kristin’s behalf to locate L.M. McElligott.

6The Will provides as follows:

• Sheila is to be appointed as estate trustee and inherit the residue of the Estate (“Residue”)—if she survives the Deceased by 30 days; and

• If Sheila does not so survive the Deceased, then Ethel is to be appointed as trustee and inherit the Residue—if she survives the Deceased by 30 days.

7The Deceased made no provision for what would happen to the Residue if neither Sheila nor Ethel survived him by 30 days—as in fact happened.

8The paragraph at the bottom of the first page of the Will reads: “I state unequivocally that under no circumstances is any part of my estate to be transferred to my estranged daughter, Kristin P. Vaudrey, or to any of her descendants.”

9Kristin applies for relief in the form of a declaration that the Will is valid, an order appointing her as the Estate Trustee with a Will, a finding that, by its terms, the Will results in an intestacy, and a declaration that Kristin is the heir-at-law of the Residue.

The Issues

10The issues to be determined on this application are:

1. Is the Will valid?

2. Is the Applicant to be appointed as the Estate Trustee with a Will and, if so, on what terms?

3. Do the terms of the Will result in an intestacy and, if so, who is the heir-at-law of the Residue (and on what terms)?

Issue No. 1 - Is the Will valid?

a) Execution of the Will

11The Will is said to have been signed by the Deceased on November 19, 2005. The individuals who are identified as having witnessed the Deceased’s signature are Sheila and L.M. McElligott. Both Sheila and L.M. McElligott signed the Will—as Witness Numbers 1 and 2, respectively.

12An affidavit of execution is attached as an exhibit to Kristin’s affidavit filed in support of the application. The affidavit of execution was sworn by Kristin in April 2019. I draw an inference and find that the witnesses to the will did not swear affidavits of execution when the Will was signed or shortly thereafter. It is not clear how Kristin is in a position to swear an affidavit of execution. I therefore treat the purported affidavit of execution as a general affidavit for the purpose of this application.

13Kristin’s evidence is that she is familiar with the Deceased’s signature and able to identify the signature on the Will as that of the Deceased. In addition, Kristin’s evidence is that she remained close with Sheila until her death in 2013. As a result, Kristin is familiar with her late sister’s signature. Kristin confirms that the signature that appears for Witness Number 1, below the signature of the Deceased, is Sheila’s.

14Kristin does not provide any evidence with respect to the signature of the other witness, L.M. McElligott.

15Three sets of initials are found in the bottom right corner of the first and second pages of the Will. Kristin’s evidence is that she is able to confirm that the initials include those of the Deceased and Sheila. Once again, Kristin does not provide any evidence with respect to the third set of initials—including whether they are those of L.M. McElligott.

16By its format and substantive content, the Will does not appear to have been prepared by a lawyer. The lack of affidavits of execution from the witnesses to the Deceased’s signature would also suggest that the Will was not prepared by a lawyer.

17Section 4(1) of the Succession Law Reform Act, R.S.O. 1990, c. S.26 (the “SLRA”) sets out the requirements for execution of a will. It provides that:

Subject to sections 5 and 6, a will is not valid unless,

(a) at its end it is signed by the testator or by some other person in his or her presence and by his or her direction;

(b) the testator makes or acknowledges the signature in the presence of two or more attesting witnesses present at the same time; and

(c) two or more of the attesting witnesses subscribe the will in the presence of the testator.

18There is no evidence to suggest that the witnesses to the Deceased’s signature did anything other than (a) actually witness the Deceased’s signature, and (b) place their respective signatures on the final page after the Deceased signed the Will. I find that the requirements of s. 4(1) of the SLRA are met.

b) Sheila is both a Witness and a Beneficiary

19The Will provides that if Sheila survived the Deceased by 30 days, she would inherit the Residue. Sheila was also a witness to the Deceased’s signature on the Will.

20Section 12(1) of the SLRA prescribes the outcome when an individual is both a beneficiary of an estate and a witness to the execution of the subject will. Pursuant to s. 12(1), the bequest of the Residue to Sheila is void. The fact that the residuary bequest is void does not, however, invalidate the Will.

c) Attempt to Disinherit Kristin

21In the final paragraph of the portion of the Will dealing with the Residue, the Deceased set out his wish that Kristin would not inherit any portion of the Estate: “I state unequivocally that under no circumstances is any part of my estate to be transferred to my estranged daughter, KRISTIN P. VAUDREY, or to any of her descendants.”

22An individual is entitled to direct how his or her estate will be distributed, including that the individual may specifically exclude someone as a beneficiary. The exclusion that the Deceased attempted to create will, however, only be effective if (a) the Will provides for the Residue to be given to someone else, and (b) the person(s) to whom the Residue is given survives the Deceased (R. v. Snider (1974), 1974 CanLII 443 (ON SC), 3 O.R. (2d) 541 (H.C.J.)). A testator cannot, by mere declaration, alter the scheme of devolution applying to intestacies as set out in the SLRA (ibid, and see: Issue No. 3 below). The Deceased’s statement that he wished to exclude Kristin from benefitting from the Estate does not invalidate the Will.

23As will be seen from the discussion below under Issue No. 3, the Deceased’s intention in that regard cannot be followed because he made no provision for the Residue in the event both Sheila and Ethel pre-deceased him. The Residue passes on a partial intestacy.

d) Summary

24I find that the Will is valid.

Issue No. 2 - Is the Applicant to be appointed as the Estate Trustee with a Will?

25Kristin, Sheila, and Ethel Vaudrey are the only family members of the Deceased identified in the Will. There is no evidence that the Deceased had any children other than Kristin and Sheila.

26Attached as an exhibit to Kristin’s affidavit is a copy of Ethel’s will. That Will appears to have been drafted by a lawyer; it bears a stamp stating, “ORIGINAL WILLS at Eric L. Honey Barrister and Solicitor …”. It also identifies Lorna Faye Baldwin as Ethel’s lawyer and as the alternate Estate Trustee. The only family members named in that Will are Kristin and Sheila.

27I find that Kristin is the only child of the Deceased to have survived him. There is no evidence that the Deceased has any other family members who might be available and interested to act as Estate Trustee.

28Upon filing the original of the Will with the court (if that step has not already been taken), a certificate shall issue appointing Kristin as the Estate Trustee with a Will.

29The PGT has been managing the Deceased’s finances since it became necessary for him to move from his home to a care facility. The home was sold, the modest mortgage on the home was paid off, and any outstanding debts of the Deceased were paid. The PGT thereafter received the Deceased’s income (CPP, OAS, and Federal Civil Service Superannuation). From the income received, the PGT paid the Deceased’s care costs and income taxes on an annual basis.

30Counsel for the Applicant informed the court that the Estate is valued at approximately $95,000. Kristin is employed on a full-time basis, owns a home, and has equity in her home in excess of the value of the Estate. I am satisfied that minimal, if any, purpose would be served by requiring Kristin to post a bond.

31The requirement to post a bond is dispensed with.

Issue No. 3 - Do the terms of the Will result in an intestacy and, if so, who is the heir-at-law of the Residue (and on what terms)?

32The Estate Trustee, once appointed, will be required to carry out the Deceased’s intentions. The “General Instructions” in the Will provide that the Estate Trustee is to first pay the Deceased’s debts, the funeral expenses (paid already by the PGT), the Deceased’s taxes, and all costs associated with looking after the Estate.

33The second step is for the Estate Trustee to “make investments with money held in trust for my beneficiary(ies) in accordance with the laws of my province.” The next step thereafter is the distribution of the Residue—to Sheila if she survived the Deceased by 30 days and, if not, to Ethel, if she survived the Deceased by 30 days.

34The Deceased made no provision for distribution of the Residue in the event he was pre-deceased by both Sheila and Ethel. It is therefore necessary to turn to s. 47 of the SLRA to determine how the residue is to be distributed. That section addresses distribution on an intestacy where the deceased is survived by his or her spouse and issue:

(1) Subject to subsection (2), where a person dies intestate in respect of property and leaves issue surviving him or her, the property shall be distributed, subject to the rights of the spouse, if any, equally among his or her issue who are of the nearest degree in which there are issue surviving him or her.

(2) Where any issue of the degree entitled under subsection (1) has predeceased the intestate, the share of such issue shall be distributed among his or her issue in the manner set out in subsection (1) and the share devolving upon any issue of that and subsequent degrees who predecease the intestate shall be similarly distributed.

35There are no “rights of the spouse” to be considered—the Deceased was pre-deceased by his spouse. Sheila did not have any children; s. 47(2) has no application.

36I find that Kristin is the heir-at-law of the Residue.

Summary

37I make the following order:

1. It is declared that the last will and testament of William J. Vaudrey, deceased, dated November 19, 2005 (“the Will”) is valid.

2. On filing the original of the Will with the court, a Certificate of Appointment as Estate Trustee with a Will shall issue to Kristin Vaudrey.

3. The requirement for Kristin Vaudrey, in her capacity as the Estate Trustee, to post a bond is dispensed with.

4. It is declared that Kristin Vaudrey is the heir-at-law of the residue of the Estate of William J. Vaudrey, deceased.