The Bank of Nova Scotia Trust Company v. Rogers, 2021 ONSC 1747

COURT FILE NO.: CV-20-000-83182 and CV-20-000-83184 DATE: 2021/03/09 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

THE BANK OF NOVA SCOTIA TRUST COMPANY AS Estate Trustee for the Estate of David Blair Rogers Applicant – and – CAMERON SCOTT ROGERS, STEPHEN GLEDDIE, GRAHAM DIXON GLEDDIE, GORDON GLEDDIE, THE SALVATION ARMY OTTAWA BOOTH CENTRE, OFFICE OF THE CHILDREN’S LAWYER, THE OFFICE OF THE PUBLIC GUARDIAN AND TRUSTEE and AUTISM CANADA FOUNDATION Respondents

Counsel: Kathleen McDormand and Elena Mamay, for the Applicant James Anderson, for the Respondent Graham Dixon Gleddie Carol Craig, for the Respondent Gordon Gleddie Jaye Hooper, for the Respondent Stephen Gleddie Andrew Sader, for the Respondent Office of the Children’s Lawyer

AND BETWEEN:

THE BANK OF NOVA SCOTIA TRUST COMPANY AS Estate Trustee for the Estate of Merrill Gleddie Rogers Applicant – and – CAMERON SCOTT ROGERS, STEPHEN GLEDDIE, GRAHAM DIXON GLEDDIE, GORDON GLEDDIE, THE SALVATION ARMY OTTAWA BOOTH CENTRE, OFFICE OF THE CHILDREN’S LAWYER, THE OFFICE OF THE PUBLIC GUARDIAN AND TRUSTEE and AUTISM CANADA FOUNDATION Respondents

Counsel: Kathleen McDormand and Elena Mamay, for the Applicant James Anderson, for the Respondent Graham Dixon Gleddie Carol Craig, for the Respondent Gordon Gleddie Jaye Hooper, for the Respondent Stephen Gleddie Andrew Sader, for the Respondent Office of the Children’s Lawyer

HEARD: October 21, 2020

REASONS FOR DECISION

JUSTICE MARC R. LABROSSE

OVERVIEW

1In December 2018, Cameron Scott Rogers (“Cameron”) plead guilty to and was convicted of murdering both his parents, Merrill Gleddie Rogers (“Merrill”) and David Blair Rogers (“David”). Cameron is currently serving two life sentences without the possibility for parole for 20 years.

2The Applicant, the Bank of Nova Scotia Trust Company, as Estate Trustee for the Estate of Merrill Gleddie Rogers and the Estate of David Blair Rogers, brings these Applications to obtain directions from the Court as to the proper interpretation of Merrill’s and David’s last wills.

3The law is clear that for public policy reasons, a person found criminally responsible for murder cannot be allowed to benefit from his crime. Nor can he benefit from the estate of the persons he murdered.

4The question at the heart of these Applications is the following: whether the estates of both Merrill and David should remain invested until Cameron dies in order to ascertain if he has any children surviving before proceeding with a distribution to alternate beneficiaries.

5For the following reasons, I am of the view that it would offend the provisions of the last wills of both David and Merrill if their estates were set aside until Cameron’s death. Public policy requires that the principle of acceleration be applied to ensure that the alternate bequeath to Cameron and the alternate bequeath to his children should both fail. Accordingly, the estates should then pass to the next level of linear beneficiaries, Merrill’s three brothers, subject to the life annuities provided for in the wills.

FACTS

6David and Merrill died on November 29, 2016 and were survived by their adopted son, Cameron. David was 69 years of age and Merrill was 63 years of age. David had no other known relatives. Merrill’s closest relatives were her three brothers, Stephen Gleddie, Graham Gleddie and Gordon Gleddie.

7David left a will dated June 23, 2014. A Certificate of Appointment for David’s estate was issued on July 13, 2017 appointing the Applicant as Estate Trustee. The application for a Certificate of Appointment indicated that the net value of David’s estate was $1,237,582.28.

8Merrill also left a will dated June 23, 2014. A Certificate of Appointment for Merrill’s estate was issued on July 13, 2017 appointing the Applicant as Estate Trustee. The application for a Certificate of Appointment indicated that the net value of Merrill’s estate was $869,177.97.

9The plain language explanation of the relevant provisions of David’s and Merrill’s mirror wills can be summarized as follows:

a) David and Merrill are appointed each other’s estate trustees, with the alternate appointed estate trustee being the Bank of Nova Scotia Trust Company.

b) Personalty is gifted to each other’s survivor, and if the other has predeceased then to Cameron, and any items not selected by Cameron are to be disposed of by the Estate Trustee with the net proceeds added to the residue;

c) The residue is gifted to each other’s survivor, and if the other has predeceased, then the residue is to be treated in the following way:

i. To retain the services of a counselor for Cameron;

ii. To rollover from any RSP, RIF and/or LIRA to Cameron’s RDSP to allowable contribution limits;

iii. To set aside remaining residue into trust and during Cameron’s lifetime:

1. the trustee to exercise discretion to pay from income and/or capital for Cameron’s benefit (such that the capital not vest in Cameron, in order to maximize benefits available for Cameron), and

2. any income accumulated to be added to capital each year, but after 21 years any unpaid income to be paid to one or more of the following, at the discretion of the trustee in consultation with Cameron:

a. Autism Canada Foundation;

b. Salvation Army Ottawa Booth Centre;

c. An organization which treats mental health or addictions.

iv. Upon the death of Cameron:

1. to distribute the balance of the trust to Cameron’s issue then living in equal shares per stirpes (and for any such person under the age of 18, to hold it in trust, with discretion to pay from income and/or capital for the benefit of that person, until age 18),

2. If Cameron has no issue then living, then distribute the balance “into as many equal shares as will provide one share for each of [Merrill’s] brothers, STEPHEN GLEDDIE, GRAHAM DIXON GLEDDIE and GORDON GLEDDIE, and I direct my Trustees to purchase an annuity or an annuity-like product (the ‘Annuity’) for each of [Merrill’s] said brothers from his share, on the following terms”:

a. … [T]he Annuity shall be a single life annuity for the beneficiary for whom the annuity or annuity-like product has been purchased and shall not be a spousal or joint life Annuity;

b. The payments from each Annuity shall be made to or for the benefit of Merrill’s respective brothers for whom the Annuity has been purchased during his lifetime;

c. The Annuity shall have a guarantee period of not less than five (5) years, such guarantee period to be determined by my Trustees in their absolute and sole discretion and I direct my Trustees, in exercising their discretion with respect to the guarantee period, to have as their primary concern the financial and non-financial needs and wants of Merrill’s said brothers and to act accordingly even where to do so might mean to act in a manner which is not even handed with regard to the financial interests of the residuary beneficiaries, provided however, that nothing in this clause shall reduce or limit the absolute or uncontrolled nature of any discretion granted to my Trustees herein;

d. The irrevocable beneficiary of each Annuity during the guarantee period shall be AUTISM CANADA FOUNDATION … and an organization which treats mental health and addictions as my Trustees may in their absolute discretion select, in equal shares;

v. If any portion of the estate remains undistributed after the application of the above paragraphs, then the trustee to distribute it, in equal shares, to AUTISM CANADA FOUNDATION … and an organization which treats mental health and addictions as my Trustees may in their absolute discretion select, in equal shares.

10In 2018, pursuant to the provisions of paragraph 3(f) of both wills, the Estate Trustee transferred $91,657.50 from David’s estate to Cameron’s Registered Disability Savings Plan (“RDSP”). This transfer was purportedly done in compliance with the requirements of the Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.), within the first year after the death of David and upon the advice of an accountant.

11At the time of the Application, Cameron was 25 years old. Given his sentence, he could be released on parole when he is in his early 40s. Cameron has no children. There are indicia that David and Merrill may have believed that Cameron was autistic. Graham Gleddie filed evidence that he was never diagnosed as being autistic but that he was diagnosed as being hyperactive and having ADHD when he was in elementary school. Graham’s affidavit states that the basis for setting up Cameron’s RDSP was a learning disability.

12At Cameron’s trial, his counsel attempted to introduce evidence that he was mildly autistic. That evidence was found to be inadmissible.

13Stephen Gleddie does not support the position of Graham and Gordon. His evidence is that Cameron was diagnosed with autism and that Merrill had asked Stephen to ensure that upon their death, Cameron would have the support he needed. Stephen is of the view that the bequests to or for the benefit of Cameron should be respected.

14The Office of the Children’s Lawyer (“OCL”) was served with this Application on behalf of the unborn issue of Cameron Scott Rogers. The OCL states in its Factum that a representation order is required under r. 10 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, in order to represent and bind the class of unborn beneficiaries of the Estate. The OCL states that it is prepared to, and has, assumed representation of that class in order to allow for the efficient hearing of this matter. As such, an order should issue to the effect that the OCL is hereby appointed and confirmed as representative for the class of unborn beneficiaries of these estates pursuant to r. 10.01 of the Rules of Civil Procedure.

15Gordon has indicated that he will deposit $25,000 from any monies he receives from the estates into an investment account for Cameron to access upon his release.

ISSUES

16The Application lists the following issues where direction is requested by the Estate Trustee:

a) Whether Cameron is entitled to receive any benefit from the estates or whether he is barred from receiving any interest, entitlements, gifts, or benefits whatsoever by reason of the public policy rule or otherwise because he directly or indirectly contributed to the death of David and Merrill.

b) If the answer to question (a) is that Cameron is not entitled to receive any benefit from the estates, who is entitled to receive the interest that Cameron would have received from the estates had he not been denied all benefits due to his convictions for David’s and Merrill’s death?

Personal Property

c) Having regard to the provisions of paragraph 3(c) of the wills, whether the Estate Trustee has the authority to dispose of any and all personal effects of David and Merrill at its sole discretion, without Cameron’s involvement, and deposit the net proceeds into the residue of the estates.

Retain Counselor

d) Having regard to the provisions of paragraph 3(d) of the wills, whether the Estate Trustee is relieved of any requirement to retain the services of Richard Hartman (“Richard”) of Holland Associates as a personal counselor to Cameron or to retain any other suitable counselor for Cameron upon Richard’s recommendation.

Registered Disability Savings Plan (RDSP)

e) Having regard to the provisions of paragraph 3(f) of the wills, whether the Estate Trustee is required to transfer all proceeds payable from any Registered Savings Plan(s) (RSPs), Registered Income Fund(s) (RIFs), [and/or] Locked in Retirement Account(s) (LIRAs) to Cameron’s Registered Disability Savings Plan?

i. If the answer is “No”, do the proceeds payable to paragraph 3(f) of the wills form part of the residue of the estates?

Residue of the Estates

f) Having regard to the provisions of paragraph 3(g) of the wills, whether the Estate Trustee is required to set aside and keep invested the residue of the estates during Cameron’s lifetime but no longer than a period of twenty-one (21) years after the date of his death and exercise its absolute and unfettered discretion regarding distribution of the net income and capital during the lifetime of Cameron?

i. If the answer is “Yes”, whether paragraph 3(g) of the wills should be interpreted to contemplate that all income generated during a period of twenty-one years after David’s death is payable to the charities listed in the said paragraph?

ii. If the answer is “No”, then how should the provisions of paragraph 3(g) be interpreted?

g) Having regard to paragraphs 3(h) and (i) of the wills, whether the Estate Trustee is required to hold the residue of estates for the benefit of Cameron’s unborn issue.

i. If the answer is “No”, whether paragraphs 3(h) and (i) should be interpreted as if Cameron predeceased David/Merrill with no issue of Cameron living at his death and the alternative beneficiaries listed in paragraphs 3(i) are entitled to the residue of the estates according to the terms of paragraphs 3(i), subsections (i), (ii), (iii), (iv) of the wills.

17In order to provide direction on all the issues listed above, the analysis begins with the first two issues, namely:

a. Is Cameron is entitled to any benefits from his parents’ estates?

b. If not, who is entitled to receive Cameron’s share of his parents’ estates?

APPLICABLE LAW

Seeking Directions

18A trustee may apply to the Superior Court of Justice pursuant to s. 60(1) of the Trustee Act, R.S.O. 1990, c. T.23, for the opinion, advice or direction of the court on any question respecting the management or administration of trust property.

19Rule 14.05(3) of the Rules of Civil Procedure permits a proceeding to be brought by application for:

a) the opinion, advice or direction of the court on a question affecting the rights of a person in respect of the administration of [an] estate…;

d) the determination of rights that depend on the interpretation of a … will…;

h) in respect of any matter where it is unlikely that there will be any material facts in dispute requiring a trial.

20There is no dispute that these Applications are properly before the Court pursuant to the above authorities.

Public Policy

21It is well accepted that public policy precludes a person from benefiting from his or her own crime. The criminal forfeiture rule or the “slayer rule” was most recently reaffirmed by the Supreme Court of Canada in Oldfield v. Transamerica Life Insurance Co. of Canada, 2002 SCC 22, [2002] 1 S.C.R. 742, at para. 11. Justice Major stated:

The public policy rule at issue is that a criminal should not be permitted to profit from crime. Unless modified by statute, public policy operates independently of the rules of contract. For example, courts will not permit a husband who kills his spouse to obtain her life insurance proceeds, regardless of the manner in which the life insurance contract was worded.

22There are some exceptions that apply to this rule such as where a person is found not criminally responsible on account of mental disorder: Dhingra v. Dhingra Estate, 2012 ONCA 261, 109 O.R. (3d) 641, at para. 22.

23Courts in Canada have identified three different approaches to dealing with situations where the criminal forfeiture rule applies: (1) the deemed death approach, (2) the literal reading of the will approach, and (3) the implied intention approach: see Bowlen Estate (Re), 2001 ABQB 1014, 304 A.R. 100, at paras. 39-50.

24The courts have generally been consistent in setting out that the overall objective is to see that the wishes of the deceased, as expressed in their wills, are carried out.

Deemed Death Approach

25In Dhaliwall v. Dhaliwall (1986), 30 D.L.R. (4th) 420 (B.C. S.C.), the will provided that all of the testator’s property would pass to the testator’s husband (the murderer) and in the event he predeceased her, to their children. The court deemed the husband to have predeceased the testator so the three children could take under the gift over provisions in the will: at p. 425. This approach avoided the need to deal with the failed gift provision of the Wills Act, R.S.B.C. 1979, c. 434, as the solution was found within the will itself. In so doing, the court declined to follow the literal interpretation. As noted in Bowlen Estate, at para. 42, the court in Dhaliwall made no reference to Re Dreger (1976), 12 O.R. (2d) 371 (H.C.), and the literal reading of the will approach.

A Literal Reading of the Will Approach

26In Re Dreger, the will provided that all of the testator’s property was to pass to the testator’s husband, the murderer in a murder-suicide. In the event he predeceased her, there was a gift over provision in favour of alternative beneficiaries. As the husband had not predeceased her, the antecedent event necessary for the gift over to operate had not occurred: at p. 382. As a result, an intestacy followed.

27The husband and wife had almost identical wills. As the husband survived the wife but was disentitled by public policy, her estate was distributed as an intestacy. As for the husband’s estate, the wife predeceased him and thus his estate was distributed according to the gift over provisions of his will.

28The theory behind the literal approach is that the testator’s will only provides for a gift over to the alternative beneficiary in the event that the primary beneficiary actually predeceases the testator, but not in cases where the primary beneficiary is disentitled or barred from taking due to public policy. In such a case, the result is an intestacy.

Implied Intention Approach

29In Brissette Estate v. Brissette, [1991] O.J. No. 1308, 42 E.T.R. 173 (Gen. Div.), the wife left the residue of her estate to her husband (the murderer), and if he predeceased her or did not survive her for thirty days, the residue went to various persons named in the will. If the result was an intestacy, the estate would go to the testatrix’s mother.

30The court held that the residue could not go to the murderer but found against an intestacy. In attempting to ascertain the testatrix’s intentions, the court found that there was an implied condition that the husband had to be a legal beneficiary. As the husband was disentitled by public policy, the intention was that if the husband could not receive the residue, it should go to the alternative beneficiaries named in the will.

31Justice Morin stated, at para. 11, as follows:

In the circumstances of this case, I must ask what were the testatrix's intentions at the time she executed her will. Her intention was first to benefit her husband, in that he would be the beneficiary of her estate. Were there any conditions to his being a beneficiary? Yes. He had to be living at the time of her death, and he had to survive her for 30 days. Are those conditions satisfied? Yes. Were there any other conditions before her husband could take? Yes. He had to be a legal beneficiary. In this case, because her husband murdered her, he disentitled himself, this being public policy and operation of law. He did not, however, disentitle innocent third parties.

32Justice Morin concluded that the residue that would have gone to the husband remained in the testatrix’s estate and was distributed according to any alternate intentions of the testatrix. At para. 12, he said:

To do otherwise would ignore the true intentions of the testatrix, that the alternate beneficiaries are to benefit, where the primary beneficiary cannot because of natural causes, or a condition precedent, or by operation of law. This approach satisfies where possible the public policy of avoiding intestacy where at all possible. Also, this approach is the least intrusive method of carrying out the intentions of the testatrix; in other words, it is the least manner of violating the testatrix's last will and testament.

33In Jollimore Estate v. Nova Scotia (Public Archives), 2011 NSSC 218, 306 N.S.R. (2d) 147, the testatrix was murdered by her son. Her will left her entire estate to her son and if he predeceased her, to the Public Archives of Nova Scotia. The testatrix’s heirs applied to the court seeking a declaration that upon a literal interpretation of the will, the result was an intestacy.

34In Jollimore, the focus of the analysis was squarely put on the intention of the testatrix after having removed the bequeath that failed due to public policy: at paras. 30-31. In that case, the subjective intention of the testatrix was that (1) her son would receive her estate upon her death, (2) but if the son did not receive her estate, the estate would go to the Public Archives: at para. 32. Thus, the Estate was distributed to the alternate beneficiary, the Public Archives.

Analysis

35I begin with the general principle that the courts will seek to avoid an interpretation of a will that will result in intestacy. However, that is not to say that this objective is to be maintained at all costs. This approach was supported by the Court of Appeal for Ontario in Re MacDonnell (1982), 35 O.R. (2d) 578 (C.A.):

This is not to say that the above rule of construction is one of universal application; one should not strive to avoid an intestacy at all costs. The language of the will may sometimes be such as to lead to the inference that the testator intended to leave part of his property undisposed of. I adopt the words of Ritchie J. in Kilby et al. v. Myers et al., [1965] S.C.R. 24 at 28-29, sub nom. Re Harmer 46 D.L.R. (2d) 521:

The inclination of courts to lean against a construction which will result in intestacy is far from being a rule of universal application and is not to be followed if the circumstances of the case and the language of the will are such as to clearly indicate the testator's intention to leave his property or some part of it undisposed of upon the happening of certain events.

It appears to me, however, that when an individual has purported to make final disposition of all his "property both real and personal of every nature and kind and wheresoever situate", he is not to be taken to have intended to leave all that property undisposed of on the happening of certain events, unless there are some very exceptional and compelling reasons for so holding. As was said by Lord Shaw in Lightfoot v. Maybery, [1914] A.C. 782 at p. 802, a construction resulting in an intestacy "is a dernier ressort in the construction of wills".

36Thus, an intestacy should be avoided absent some exceptional and compelling reasons.

37The analysis then turns to a determination of the testators’ actual or subjective intention. As stated in Trezzi v. Trezzi, 2019 ONCA 978, 150 O.R. (3d) 663, the court’s task in interpreting a will is to determine the testator’s actual or subjective intention as to how he intended to dispose of his property. This involves construing the will in light of all the surrounding circumstances to determine the testator’s true intention and the court placing itself in the position of the testator at the time that the will was made: Trezzi, at para. 13.

38In Bowlen Estate, at para. 51, the three approaches where the criminal forfeiture rule applies were succinctly summarized as follows:

In Dahliwall, deeming a death creates a fiction as an antecedent step to a particular result (benefit the children and avoid an intestacy). Brissette simply ignores the antecedent condition of survival and implies an additional condition to achieve a desired result (benefit the children and avoid an intestacy) rather than adopting the strict literal interpretation of the particular provision as was done in Re Dreger which resulted in an intestacy. [Emphasis in original.]

39In the present circumstances, the clear subjective intention of both David and Merrill was:

i. To leave everything to each other;

ii. If their spouse could not receive their estate, that their estate would pass on in the form of a life interest to their son Cameron;

iii. If Cameron could not receive his life interest should he predecease them, that their estate would pass on to Cameron’s then living children;

iv. If Cameron could not receive his life interest should he predecease them with Cameron leaving no then living issue, that their estate would pass on to Merrill’s three brothers, subject to the annuity provisions; and

v. If the annuity provisions were not completed, the remainder would go to Autism Canada and another organization.

40The subjective intentions of both David and Merrill are clear. If their spouse, Cameron or Cameron’s then living issue cannot receive their estate, the estate is to go to Merrill’s three brothers subject to the annuities. Thus, there are four levels of beneficiaries starting with each spouse, which look to maintain the demonstrated intent to keep the estates in the family. However, there is also an intention to have their grandchildren benefit from their estates.

41I agree with the conclusion in Jollimore Estates, at para. 33, that to interpret the condition precedent “if he (my son Cameron) predeceased me, and if there are no issue of my son then living” as resulting in an intestacy would be to ignore an important element of the testator’s intentions. Thus, I do not believe that a literal reading of the wills would properly reflect the true intentions of David and Merrill.

42In Bowlen Estates, at para. 61, the court concluded that the practical effect of the deemed death approach and the implied intention approach lead to the same conclusion: the court simply gives effect to any “gifts over” which may have been frustrated by the fact that the murderer outlived the testator. Thus, practically, there are two approaches. The first is the strict literal interpretation which leads to an intestacy as the murderer does not outlive the testator. The second approach focuses on the intentions of the testator to benefit those who are subject to the “gifts over”.

43I prefer the latter approach in the context of the implied intention approach for the following reasons:

a. Regardless of which approach is adopted – deemed death or implied intention – those approaches keep the analysis within the confines of the will and allow the contingencies contained therein to play out;

b. The rule of avoiding an intestacy, where possible, is maintained;

c. The implied intention approach is the least intrusive because it reflects more precisely what has actually happened and focusses on the intention of the testator by allowing alternate bequests to be followed. Cameron is no longer a legal beneficiary by application of the criminal forfeiture rule and there is no need to deem Cameron to have predeceased his parents. His bequest of a life interest fails and the focus shifts on the remainder of the testators’ intentions. This conclusion is supported by the fact that the will did not include any wording which would contemplate that Cameron’s entitlement would continue even if he was disentitled. The implied interpretation that he be a legal beneficiary failing which the balance of the will is followed. This is more consistent with the form of a will which includes “gifts over”.

d. As a result of no longer being a legal beneficiary, Cameron has lost his entitlement. However, to leave the will at this point and find an intestacy does not respect the subjective intentions of the testators which were to create four contingent levels of beneficiaries and maintain control through the use of the “gifts over”. Their intention was clearly not to leave it to chance as part of an intestacy.

Acceleration

44Having concluded that in these circumstances, the implied intention approach best reflects the intentions of David and Merrill to control the contingencies in their will through the use of “gifts over”, the Court is now tasked with determining if the estates are to be kept and managed for unborn grandchildren or if the absence of any such grandchildren allows the Court to accelerate to the next lineal beneficiaries, being Merrill’s brothers.

45Acceleration is the concept, in the context of estates, that a subsequent interest (such as a remainder interest) accelerates if a prior interest (such as a life interest) is disclaimed, surrendered or otherwise terminated. In the present case, Cameron’s disentitlement for public policy meets this criterion.

46The OCL submits that regardless of which approach is adopted, the Court should find that the estates should be administered such that (1) Cameron receives no benefit, but that (2) the intention of the testators was to have Cameron’s life interest pass on to his children and (3) thus the residue must held until Cameron’s death and the remaining provisions of the will would then apply.

47With Cameron now disentitled as he is not a legal beneficiary, the OCL argues against the remaining provisions being accelerated as this would disentitle David and Merrill’s future grandchildren, if any. The OCL argues that this is tantamount to varying the trusts set out in the wills.

48In Ontario, varying a trust must comply with the Variation of Trusts Act, R.S.O. 1990, c. V.1, s. 1(2), which requires that minors, incapable adults and unborn beneficiaries, with vested or contingent interests, must receive a benefit under the variation. In this case, the OCL has stated that it would not consent to an application to vary these trusts given that the interest of the unborn beneficiaries is capital in nature.

49However, as properly stated by all parties, this is not an application to vary a trust. I agree that the additional submission by Graham Gleddie to remove the requirement for the annuities would represent a significant rewriting of the wills. This requirement is an essential component of the “gifts over”. However, I am still of the view that the issues surrounding acceleration merit close attention.

50When considering acceleration, the parties have identified two lines of cases which appear to conflict:

a. Both in Brannan v. British Columbia (Public Trustee) (1991), 56 B.C.L.R. (2d) 113 (C.A.), and in McGavin v. National Trust Co. (1998), 49 B.C.L.R. (3d) 253 (C.A.), the Court of Appeal for British Columbia highlighted that the variation of trusts legislation in British Columbia did not prevent the court from applying the principal of acceleration as the default in a case of disclaimer.

b. In Kist Estate, Re (1993), 114 Sask. R. 53 (Surr. Ct.) and Genova v. Giroday, 2000 CarswellOnt 3267 (S.C.), those courts distinguished the approaches in Brannon and McGavin on the facts of those cases. The courts relied upon the variation of trusts legislation to support the proposition that in the case of a life interest which is disclaimed, the interests of the remainder beneficiaries is not accelerated and that either (1) the death of the individual with the life interest must be awaited or (2) the interests of unborn beneficiaries must be properly compensated under provincial variation of trusts legislation.

51As previously stated, this is not an application to vary the trusts created by the wills. This case involves important public policy considerations which must be enforced in order to allow the Court to distance itself, as far as possible, from the murderer receiving any benefit from his crime. However, the bulk of cases which favour acceleration result in the immediate gift to the testator’s next closest lineal descendants. In the present case, the acceleration would apply not only to Cameron by reason of public policy but also to his issue and the effect would be to pass over David and Merrill’s future grandchildren, if any.

52This analysis also includes a requirement that the Court apply the “armchair rule” whereby the Court asks itself: if David and Merrill could have been aware of the possibility of Cameron’s disentitlement and the reasons for it, would they nevertheless have wanted to benefit their future grandchildren? If they had living grandchildren at the time of their death, that question would be easier to answer.

53In considering the “armchair approach”, the Court must also add to the picture the reality of Cameron leaving prison at some point during his life sentence. He could be in his mid-forties and have the knowledge that a two-million-dollar trust lies available to any children he may have. In the context of the public policy issues surrounding the criminal forfeiture rule, there is a distinct possibility that this could lead to some type of misfeasance. This is a distinctive element of applying the “armchair approach” in these circumstances. If David and Merrill could have been aware of Cameron’s disentitlement (and the exact basis for it), would they have wanted for their estates to wait for Cameron’s release from prison and possibly fuel a decision to have children? It is my view that this would fly in the face of the original public policy reasons for disentitlement and would not have been an outcome that either David or Merrill would have preferred.

54It must also be noted that Cameron’s sentence is a life sentence. There is a chance that Cameron will not qualify for parole and never leave prison. While the intention behind the subject wills was to benefit their own issue, it is also clear that before anything would go to charities, there was an intention to keep the residue in the family by having it go to Merrill’s brothers. The reality is that Merrill’s brothers may be deceased by the time Cameron dies. The result of keeping the residue in trust until Cameron’s death would likely be to eliminate the possibility of Merrill’s brothers receiving any share of the estates which is contrary to the intention to keep the estates in the family.

55There is also support in the authorities that the question of acceleration should not be viewed as being tantamount to a variation of the provisions of the trusts. According to Donovan W.M. Waters, Waters’ Law of Trusts in Canada, 4th ed. (Toronto: Thomson Reuters, 2012), at pp. 1245-1246:

[That it is not a variation of the trust] is important because it means that while the court is called upon to interpret the document by which the trust was created, the court in such case is not called upon to approve a variation of the trust if the conclusion be that acceleration is brought about. There has been some suggestion that the provisions of the variation of trusts legislation must be observed. The better view is that the legislation is not relevant to this issue. It is a misunderstanding to think that the passage of variation of trusts legislation changes the case law on this point. [Footnotes omitted; emphasis in original.]

56In these particular circumstances, with the disentitlement of Cameron, there is clearly no result which perfectly follows the wording of David and Merrill’s wills. It is impossible to simply consider the law on acceleration without being influenced by the public policy considerations and this is a distinguishing feature of this case. Having considered all the circumstances, the Court is concerned with Cameron leaving prison in his mid-forties and having the incentive to have children in order for them to benefit from a trust left available for them.

57It is acknowledged that in considering the express provisions of the will, one may view the gift-over to Cameron’s then living issue as expressing a contrary intention against acceleration. However, that contrary intention must be considered in the particular circumstances of David and Merrill’s death and the public policy considerations of the criminal forfeiture rule.

58In Schipper v. Guaranty Trust Co. of Canada (1989), 69 O.R. (2d) 386 (C.A.), the Court of Appeal for Ontario emphasized the intentions of the testator over the interests of unborn children and future contingent beneficiaries. The testator’s will established a trust fund in favour of his wife and then a separate trust for their son. Upon the son’s death, the residue of that trust was to be distributed to his children. The son was 30 at the time and had no children, and he had no plans or intentions to have children. The trustees had the discretion to encroach on the trust capital. The wife requested a monthly amount from the capital and the deciding trustee refused, stating that the capital should be preserved for the benefit of the residual beneficiaries including the son’s yet unborn children.

59The Court of Appeal found that the intention of the will was to provide for the care of the testator’s wife out of the trust fund, including the capital. The court found that the trustee was giving undue concern for the interests of the remote unborn whose interest was “speculative to say the least”: at p. 388. Thus, without attributing too much weight on Schipper which is fact-specific, the Court must still weigh the interests of unborn beneficiaries with the intentions of the testator.

60When considering the intentions of David and Merrill, specific attention was given to whether Cameron had “issue … then living” on his death or whether he had “no issue … then living” on his death. Clause 3(h) of the wills is conjunctive. It takes effect (1) if Cameron has died or has predeceased the testator, and (2) there are issue of Cameron “then living”. If these two conditions are met, then the Trustees are to divide the residue of the estate among Cameron’s “issue then living, in equal shares per stirpes”. Understood in this way, Cameron’s issue must be “then living” to take under the will. When Merrill and David were murdered, Cameron had no “issue … then living”.

61In contrast, the wills did not provide for a gift-over to Cameron’s issue in equal shares per stirpes. They specified “then living” and these additional words must be given meaning in interpreting their intentions. As the wills refer to Cameron’s “issue then living” rather than to Cameron’s issue, it must be taken to mean that the testator contemplated Cameron’s issue taking under the will if they were (1) “then living” (2) either upon Cameron’s death or if Cameron had predeceased the testator.

62Turning now to clause 3(i) of the wills, this provision takes effect (1) if Cameron has died or has predeceased David and Merrill, and (2) there are “no issue” of Cameron “then living”. By operation of public policy, Cameron cannot take under the will and his disentitlement is a triggering event equivalent to his having died. This satisfies requirement no. 1 of clause 3(i). Cameron had no issue “then living” at the time of disentitlement and this satisfies requirement no. 2 of clause 3(i).

63In returning to the armchair intentions of David and Merrill, I conclude that their intention was to leave a life interest to Cameron and if he could not benefit from it as a result of a triggering event such as his death, it should pass to his children if he had any living at the relevant time. The wills are structured around providing contingencies or “gifts-over” to account for a series of triggering events. The first of these events is the spouse predeceasing, the second is Cameron predeceasing, the third is Cameron predeceasing or dying leaving no issue then living and the fourth is one of the brothers either predeceasing or dying before the annuities have been fully distributed. Cameron’s disentitlement is a similar triggering event which leads to the gift-over provisions of the wills.

64In this context, I conclude that Cameron is disentitled and that his disentitlement crystalizes at a time where he has no living issue. The criminal forfeiture rule plays a role in guiding the Court to accelerate the bequeath to Cameron and also to his unborn children. If the true intent of the structure of these wills is to be respected, the estates should be kept in the family. The intent of the testators was to ensure that upon the triggering events, the estates should pass to the next level of lineal descendant. The triggering event in question is that Cameron is disentitled and has no issue surviving. As such, the next level of lineal descendants are Merrill’s three brothers, subject to the annuities.

DIRECTIONS

65For the reasons set out above, I return to the questions sought by the Applicant and provide the following directions:

a) Whether Cameron is entitled to receive any benefit from the estates or whether he is barred from receiving any interest, entitlements, gifts, or benefits whatsoever by reason of the public policy rule or otherwise because he directly or indirectly contributed to the death of David and Merrill.

Direction: Cameron is disentitled.

b) If the answer to question (a) is that Cameron is not entitled to receive any benefit from the estates, who is entitled to receive the interest that Cameron would have received from the estates had he not been denied all benefits due to his convictions for David’s and Merrill’s death?

Direction: Stephen Gleddie, Graham Dixon Gleddie and Gordon Gleddie as per the terms of the annuities.

Personal Property

c) Having regard to the provisions of paragraph 3(c) of the wills, whether the Estate Trustee has the authority to dispose of any and all personal effects of David and Merrill at its sole discretion, without Cameron’s involvement, and deposit the net proceeds into the residue of the estates.

Direction: Yes.

Retain Counselor

d) Having regard to the provisions of paragraph 3(d) of the wills, whether the Estate Trustee is relieved of any requirement to retain the services of Richard Hartman (“Richard”) of Holland Associates as a personal counselor to Cameron or to retain any other suitable counselor for Cameron upon Richard’s recommendation.

Direction: No.

Registered Disability Savings Plan (RDSP)

e) Having regard to the provisions of paragraph 3(f) of the wills, whether the Estate Trustee is required to transfer all proceeds payable from any Registered Savings Plan(s) (RSPs), Registered Income Fund(s) (RIFs), Locked in Retirement Account(s) (LIRAs) to Cameron’s Registered Disability Savings Plan?

Direction: No.

i. If the answer is “No”, do the proceeds payable to paragraph 3(f) of the wills form part of the residue of the estates?

Direction: Yes.

Residue of the Estate

f) Having regard to the provisions of paragraph 3(g) of the wills, whether the Estate Trustee is required to set aside and keep invested the residue of the estates during Cameron’s lifetime but no longer than a period of twenty-one (21) years after the date of his death and exercise its absolute and unfettered discretion regarding distribution of the net income and capital during the lifetime of Cameron?

Direction: No.

i. If the answer is “Yes”, whether paragraph 3(g) of the wills should be interpreted to contemplate that all income generated during a period of twenty-one years after David’s death is payable to the charities listed in the said paragraph?

ii. If the answer is “No”, then how should the provisions of paragraph 3(g) be interpreted?

Direction: As if Cameron had predeceased leaving no issue.

g) Having regard to paragraphs 3(h) and (i) of the wills, whether the Estate Trustee is required to hold the residue of estates for the benefit of Cameron’s unborn issue.

Direction: No.

i. If the answer is “No”, whether paragraphs 3(h) and (i) should be interpreted as if Cameron predeceased David/Merrill with no issue of Cameron living at his death and the alternative beneficiaries listed in paragraphs 3(i) are entitled to the residue of the estates according to the terms of paragraphs 3(i), subsections (i), (ii), (iii), (iv) of the wills.

Direction: Yes, follow 3(i) as drafted and give effect to the provisions relating to the purchase of annuities.

66Finally, the Court directs that any amounts from either estates that have been invested into Cameron’s RDSP should be returned to the estates.

COSTS

67The parties are encouraged to resolve the issue of costs. In the event that they are unable to agree, they may make written submissions within 30 days of the release of this decision, and submit them to the following address: scj.assistants@ontario.ca. There will be no right of reply. Each cost submission shall not exceed three pages, excluding attachments, and shall comply with Rule 4.