Court File and Parties
COURT FILE NO.: CV-22-45-0000
DATE: 20221117
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
The Estate of Constance Evelyn Stevenson, by its Estate Trustee The Canada Trust Company
Applicant
– and –
The Estate of Mildred Jean Chant by her Estate Trustees George Ronald Pring and Suzanne Lynn Carrel, Cynthia Keller a.k.a. Cynthia Stevenson, Cathy Roszell a.k.a. Cathy Rosell, Linda Willand, Verne Crosby a.k.a Eugene Crosby, Selena Morton a.k.a. Sally Twitchell, John Campbell MacIntyre, Margaret MacIntyre a.k.a. Margaret Tuffin, Marion Fuller, and Alexander Fuller , Respondents
Respondents
Counsel:
Jacob D.A. Harper, agent for Sarah Draper for the Applicant
Kristi J. Collins, for the Respondent Cynthia Keller a.k.a. Cynthia Stevenson
A. John Sanders, for the respondents Judy Harvey a.k.a. Judith Burgess and John Campbell MacIntyre
HEARD: November 1, 2022
Reasons for Decision
Justice D.A. Broad
Background
[1] This application concerns the estate (the “Estate”) of Constance Evelyn Stevenson (the “testator” or “Connie”) who died on October 2, 2016, leaving a Last Will and Testament dated April 25, 1983 (the “Will”).
[2] Counsel referred to the testator and all parties and named beneficiaries by their first names and, for the sake of brevity and clarity, I intend to do the same. No disrespect is intended.
[3] The Will named Connie’s husband Bruce Edison Stevenson (“Bruce”) and her sister Mildred Jean Chant (“Mildred”) as her Executors and Estate Trustees. Bruce and Mildred both predeceased Connie.
[4] Connie had no children of her own. Her second husband Bruce had two children Gary Bruce Stevenson and Cynthia Doreen Stevenson (the “stepchildren”). Her first husband Hugh Crosby (“Hugh”) had a number of nieces and nephews (the “nieces and nephews”).
[5] The Canada Trust Company (the “Estate Trustee” or “Canada Trust”) applied for and was granted a Certificate of Appointment in respect of the Estate.
[6] The issue for determination concerns one of two gifts from the residue of the Estate to Mildred. One of the residuary gifts to Mildred provided for a gift-over in the event that she predeceased Connie, while the other gift did not. The court’s task is to determine how the gift from the residue, in respect of which no gift-over was specified, should be distributed.
Residuary Gifts
[7] Paragraph III(g) of the Will deals with the distribution of the residue of the Estate by initially dividing it into equal shares (“Share One” and “Share Two”).
[8] Subparagraph III(g)(i) of the Will left the entirety of Share One to Bruce if he survived Connie. If he did not survive her, the subparagraph provided that one-half of Share One shall be paid to Mildred for her sole and only use (“Mildred’s First Share”). The subparagraph went on to provide for the distribution of the other one-half of Share One by providing legacies of $5000 each to the nieces and nephews, with the balance to the stepchildren (Gary and Cynthia) or the survivor of them, if one predeceased.
[9] Subparagraph III(g)(ii) dealt with Share Two of the residue of the Estate. It provided for payment of certain specific legacies to the stepchildren and the nieces and nephews, with the balance to Mildred (“Mildred’s Second Share”). Unlike the subparagraph III(g)(i), which did not provide for a gift over of Mildred’s First Share in the event that she predeceased Connie, subparagraph III(g)(ii) did provide for a gift over to the surviving members of a class composed of the stepchildren and the nieces and nephews.
[10] The residuary provisions of the Will at subparagraph III(g) are reproduced as follows:
(g) TO DIVIDE the residue of my estate into two equal shares to be dealt with as follows:
(i) TO PAY OR TRANSFER one of such equal shares to my husband, BRUCE EDISON STEVENSON, for his sole and only use, provided he survives me. In the event that my said husband predeceases me, then such share shall be paid or transferred as follows:
One-half of such share shall be paid to my sister, MILDRED JEAN CHANT, for her sole and only use;
Out of the remaining one-half of such share, the sum of FIVE THOUSAND DOLLARS ($5,000.00) shall be paid to each of the following named persons who survives me, namely: SHIRLEY WILCOX, ROBERT CROSBY, RUSSELL CROSBY, CATHY ROSZELL, LINDA WILLAND, and EUGENE CROSBY, all of whom are nieces and nephews of my late husband, Hugh Crosby; and
The balance of such share shall be paid or transferred equally to my husband's son, GARY BRUCE STEVENSON, and my husband's daughter, CYNTHIA DOREEN STEVENSON, or to the survivor of them if one of them should not then be living.
(ii) TO PAY the following legacies out of the remaining one such equal share:
To my husband's son, GARY BRUCE STEVENSON, the sum of TEN THOUSAND DOLLARS ($10,000.00), provided that if he should predecease me, then the said $10,000.00 shall be paid or transferred to my husband's daughter, CYNTHIA DOREEN STEVENSON.
To my husband's daughter, CYNTHIA DOREEN STEVENSON, the sum of TEN THOUSAND DOLLARS ($10,000.00), provided that if she should predecease me, then the said $10,000.00 shall be paid or transferred to my husband's son, GARY BRUCE STEVENSON.
To each of the following named persons the sum of FIVE THOUSAND DOLLARS ($5,000.00), namely: SHIRLEY WILCOX, ROBERT CROSBY, RUSSELL CROSBY, CATHY ROSZELL, LINDA WILLAND, and EUGENE CROSBY, all of whom are nieces and nephews of my late husband, Hugh Crosby. In the event that any one or more of the said nieces or nephews should predecease me, then the sum to which such deceased person would have been entitled if living shall be divided equally among those of the said nieces and nephews who are then alive; and
(iii) TO PAY OR TRANSFER the balance of such remaining equal share to my sister, MILDRED JEAN CHANT, for her sole and only use. Provided that if my said sister should predecease me, then the share to which she would have been entitled if living shall be paid or transferred to my husband, BRUCE EDISON STEVENSON, for his sole and only use. Provided further that if both my said sister and my said husband should predecease me, then in that event, the share of my estate to which they would have been entitled had they survived me shall be distributed equally among those of the following persons who survive me, namely: GARY BRUCE STEVENSON, CYNTHIA DOREEN STEVENSON, SHIRLEY WILCOX, ROBERT CROSBY, RUSSELL CROSBY, CATHY ROSZELL, LINDA WILLAND, and EUGENE CROSBY.
Application and Directions Sought by the Estate Trustee
[11] The Estate Trustee has applied for the advice and direction of the court respecting the distribution of Mildred’s First Share as the Will does not contemplate how it should be distributed in the event that she predeceased the Testator.
[12] The lawyer who drafted the will is now deceased. The firm of the drafting lawyer has advised that they have been unable to locate any Will instructions or other notes with respect to the Will.
[13] Connie did not own any real property at the time of her death, and all assets amounting to $809,531.53 were held with Toronto-Dominion Bank.
[14] The Estate Trustee has estimated that Mildred’s First Share comprises, net of expenses, approximately $175,000.
[15] In Mildred’s Last Will and Testament dated September 30, 2016, she named George Ronald Prong and Suzanne Lynn Carrell as estate trustees. Those individuals were appointed Estate Trustees of Mildred’s Estate by Certificate of Appointment issued December 19, 2016.
[16] The Applicant/Estate Trustee says there are various possibilities as to how Mildred’s First Share might potentially be dealt with under the law, and seeks the court’s advice and direction respecting the following questions:
(a) Should Mildred’s First Share be distributed in accordance with Mildred’s last will and testament, even though she predeceased Connie?
(b) or should Mildred’s First Share be distributed by intestacy or partial intestacy? If so, who is entitled to receive Mildred’s First Share and what percentage should each receive?
(c) or should the Will be rectified in such a way that Mildred’s First Share be distributed to the other beneficiaries named in paragraph 3(g)(i)(3), which deals with the distribution of the balance of the First Share?
(d) or should the Will be rectified in such a way that Mildred’s First Share is to be distributed to the other beneficiaries named in paragraph III(g)(iii), who are to receive Mildred’s Second Share, as a result of Mildred passing way before the testator? If so, what percentages should each receive?
(e) or should the income be treated differently from any of the options outlined above?
Service on Interested Parties and Parties Responding to the Application
[17] The Estate Trustee retained the services of a consultant “Genealogy & DNA Research Services” (the “genealogy consultant”) to assist in identifying Connie’s next of kin in the event that Mildred’s First Share is to be distributed by intestacy or partial intestacy.
[18] The genealogy consultant identified that Connie’s next of kin currently comprise six second cousins. They have all been named as respondents to the Application, as have the estate trustees of Mildred’s estate and each of the surviving nieces and nephews.
[19] The second cousins (next of kin) are the following:
(a) Selena Morton a.k.a. Sally Twitchell,
(b) Judy Harvey a.k.a. Judith Burgess,
(c) John Campbell MacIntyre,
(d) Margaret MacIntyre a.k.a. Margaret Tuffin,
(e) Marion Fuller, and
(f) Alexander Fuller.
[20] Affidavits of Service were filed confirming service on all of the respondents with the exception of Marion Fuller. The affidavit of Brandon M. Boone, a lawyer in the office of the Estate Trustee’s counsel, filed in support of the Application, described the considerable efforts that the Estate Trustee made to try to find Marion Fuller for the purpose of serving her with the Application Record.
[21] The estate trustees of Mildred did not appear in the proceeding and claim no interest in any part of the Estate.
[22] None of the nieces and nephews appeared in the proceeding and none claim an interest in any part of the portion of the residue of the Estate under consideration.
[23] Cynthia Keller appeared in the proceeding, filed an affidavit and retained counsel for the hearing of the Application.
[24] Two of Connie’s second cousins, namely Judith Burgess and John Campbell MacIntyre appeared in the proceeding, filed affidavits and retained counsel for the hearing of the Application. Their interests, if any, in the distribution of Mildred’s First Share are aligned with any interest that Marion Fuller may have. Given this factor and the efforts made by the Estate Trustee to find Marion Fuller for the purpose of serving her, and on consent of counsel for each of the Estate Trustee, Cynthia Keller and Judith Burgess and John Campbell MacIntyre, I made an order at the commencement of the hearing dispensing with service of the Notice of Application on Marion Fuller and validating service on all of the remaining persons having potential interests in the portion of the residue of the Estate under consideration.
Evidence of Cynthia Keller
[25] In her affidavit Cynthia Keller deposed as follows:
(a) Connie was married to Cynthia’s father Bruce for 40 years. Connie was her stepmother and the two of them cared deeply for each other and Connie treated Cynthia like a daughter;
(b) Cynthia and Connie bonded through numerous shared interests. Around the time Connie made her Will in the early 1980’s Cynthia was attending Mohawk College for interior design and the two of them would spend hours at Connie’s kitchen table putting together design boards for class;
(c) Cynthia lived close to Connie and Bruce at the time of the making of the Will and she would see them a few times each week;
(d) around the time of the making of the Will and for many years thereafter Connie and Cynthia also spent a lot of time together playing backgammon, cribbage, going out for lunch and going to the library;
(e) Cynthia married her first husband in 1989 and Connie was involved with the bridal showers and the wedding;
(f) Cynthia moved to Calgary in 1993 and thereafter visited Ontario once or twice a year. She spoke with Connie by telephone every week or two and Bruce and Connie visited in Calgary numerous times and really enjoyed it;
(g) Cynthia’s brother Gary had two children and Connie was very involved with their lives when they were young. They have always called Connie their “Grandma;”
(h) Gary spent two years renovating Connie’s and Bruce’s home before it was put on the market for sale. The net proceeds from the sale of the home make up the bulk of the value of Connie’s Estate;
(i) Gary and Cynthia took care of their father and Connie in their last years. Cynthia and her husband travelled from Calgary two or three times per year to assist and Gary and Cynthia made all of the decisions to ensure that both Bruce and Connie were well taken care of and had everything they required. The two of them were the emergency contacts for Bruce and Connie;
(j) Bruce died on September 18, 2018. Gary died on January 16, 2020. After Gary’s death, Cynthia was solely responsible for Connie’s care and was the first point of contact for the long-term care home and addressed all of Connie’s final needs. Even though she was not the estate trustee, Cynthia spent much time and money moving the Estate to this point;
(k) Bruce informed Cynthia when he and Connie made their wills in 1983 and explained that his will divided the residue of his estate so that 50% would go to Connie and 50% would be divided equally between Gary and her;
(l) Connie also held a $20,000 life insurance policy naming Gary and Cynthia as beneficiaries; and
(m) Connie’s next of kin are all distant relatives who had no contact with Connie or Bruce and the Estate Trustee’s hired genealogist had a hard time tracking them down.
[26] In her affidavit Judith Burgess (“Judy”) deposed to the following:
(a) Connie was a second cousin of Judy’s late mother Margaret Helen Harvey who lived in the Village of Sparta, Ontario for her entire lifetime from 1915 to 2004;
(b) like her mother, Judy has always lived in her on the outskirts of the Village of Sparta. Judy is now 78 years old;
(c) Connie and her sister Mildred were born in and raised and chose to maintain close ties to the Sparta area, as had been the case through several generations of ancestors;
(d) the respective family homes in which Mildred and Connie grew up and Judy’s mother and Judy grew up were approximately 1 mile apart;
(e) Judy’s earliest memory of Connie was when she was very young. Judy would visit along with her mother and father Connie, Mildred and their parents Annabelle and Walter to have a meal. In the summer it was a picnic in the yard and for Christmas they always joined Judy’s family at their home because Annabelle and Walter did not have any indoor plumbing at their home;
(f) Connie asked Judy to be her flower girl for her first wedding to Mr. Crosby;
(g) as their lives progressed there were busy years when Judy, Connie and Mildred saw less of each other. Connie, Bruce and Judy kept in touch with Christmas and birthday cards and occasional visits at Connie’s parents’ home or at Judy’s parents’ home whenever Connie and Bruce came home to Sparta. They stayed in touch whenever they could;
(h) later, when Mildred reached a stage, after returning to the Sparta community, when she did not want to drive long distances, she would ride with Judy to Brantford to visit Connie and Bruce;
(i) later Judy made trips to Brantford, alone or with her daughter Janice, to visit Connie at the long-term care facility and she also visited Bruce at his retirement residence. When Judy last saw Connie and Bruce they are both living in the same long-term care home on separate floors. Until his death, Judy telephoned Bruce regularly to hear how each of them were keeping; and
(j) from a very young age caring and respect for the entire family was an important aspect of the upbringing experienced by Connie, Mildred and Judy and their other relatives who maintained their family traditions.
[27] In his affidavit John Campbell MacIntyre (“John”) deposed to the following:
(a) John was born in 1928 and resides in the Village of Thamesford, in the County of Oxford;
(b) John is one of the children of Eva Margaret Taylor and James Ivan McIntyre. His grandfather Duncan Taylor was a great uncle of Connie;
(c) John and his younger sister Margaret McIntyre, along with Marion Fuller and Alexander Fuller are now the only living grandchildren of Duncan Taylor;
(d) John recalled an occasion in the summer of 1940 when a relative Walter Knowlton and his family came to visit at his parents’ home. At that time the John was a preteen living with his mother and father in Harrietsville, north of Aylmer, Ontario. On that occasion John met Walter’s wife Annabelle and their two daughters Mildred and Connie;
(e) the family relatives were constant topic of conversation in John’s home, and he heard continuing discussions about various relatives. Written communication by mail was the primary way of maintaining family ties.
[28] The balance to which each of Cynthia, Judy and John stated in their respective affidavits represent commentary, expressions of opinion and argument to which I have not had regard.
Issue and Positions of the Parties
[29] The issue on the Application is whether the lapsed residuary gift identified above as Mildred’s First Share goes out on an intestacy to Connie’s next of kin being the six second cousins or is distributed otherwise than on an intestacy and if so, to whom.
[30] Under Ontario law, unless there is a contrary intention and the will, a lapsed residuary gift passes upon an intestacy to the next of kin (Kossak Estate v. Kosak, 1990 CarswellOnt 483 (H.C.J.) and Mladen Estate v McGuire, 2007 CarswellOnt 1976 (S.C.J.)).
[31] Judy and John take the position that Mildred’s First Share passes on an intestacy and should therefore be divided among themselves and the other four second cousins named above in equal shares.
[32] Cynthia takes the position that a contrary intention is shown by the Will and that Mildred’s First Share therefore does not pass on an intestacy but rather should pass to her as the surviving residuary beneficiary of Share One of the residue of the Estate.
Guiding Principles Respecting the Interpretation of Wills
[33] The most recent explanation by the Court of Appeal of the guiding principles governing the interpretation of a will was provided by Brown, J.A., writing for the panel, in Ross v. Canada Trust Company, 2021 ONCA 161, [2021] O.J. No. 1353 at paras. 36-41 as follows:
When interpreting a will, a court's task can be stated simply: it is to determine the Testator's actual or subjective intention as to how she intended to dispose of her property: Trezzi, [2019 ONCA 978] at para. 13.
The basic approach to the construction of a will was described by this court in Burke (Re), 1959 CanLII 113 (ON CA), [1960] O.R. 26 (C.A.), at p. 30:
Each Judge must endeavour to place himself in the position of the Testator at the time when the last will and testament was made. He should concentrate his thoughts on the circumstances which then existed and which might reasonably be expected to influence the Testator in the disposition of his property. He must give due weight to those circumstances in so far as they bear on the intention of the Testator. He should then study the whole contents of the will and, after full consideration of all the provisions and language used therein, try to find what intention was in the mind of the Testator. When an opinion has been formed as to that intention, the Court should strive to give effect to it and should do so unless there is some rule or principle of law that prohibits it from doing so.
While a key element of Burke's approach to will interpretation is, of course, studying the document's contents — not only the provisions in dispute but the entire will — its approach also includes the use of what is known as the "armchair rule". Ian Hull and Suzana Popovic-Montag, Feeney's Canadian Law of Wills, 4th ed. (Toronto: LexisNexis, 2020) at §§10.45 and 10.46, describes the "armchair rule" as follows:
In the first instance, the court may not be convinced that the Testator's intention can be discerned from the will itself. In such a situation, since the Testator must be taken to have used the language of the will in view of the surrounding circumstances known to him or her when he or she made his or her will, evidence of such circumstances is necessarily admissible, at least insofar as it corresponds to the facts and circumstances referred to in the will. It seems obvious that a court might conclude that admissible evidence of surrounding circumstances is not helpful in determining meaning.
The court puts itself in the position of the Testator at the point when he or she made his or her will, and, from that vantage point, reads the will, and construes it, in the light of the surrounding facts and circumstances. This approach is commonly referred to as the "armchair rule".
Sitting in the place of the Testator, the court assumes the same knowledge the Testator had, at the time of making the will, in regard to the nature and extent of her assets, the makeup of her family, and her relationship to its members: Stuart v. Stuart, 2019 ONSC 4328, 49 E.T.R. (4th) 306, at para. 9; Dobson Estate v. Dobson (2000), 32 E.T.R. (2d) 62 (Ont. S.C.), at para. 8; Shamas (Re), 1967 CanLII 303 (ON CA), [1967] 2 O.R. 275 (C.A.), at p. 279, citing Perrin v. Morgan, [1943] A.C. 399 (U.K. H.L.), at pp. 420-21.
In the past, courts usually have resorted to the "armchair rule" where the Testator's intention cannot be ascertained from the plain meaning of the will's language: Dice v. Dice Estate, 2012 ONCA 468, 111 O.R. (3d) 407, at para. 37.
More recently, courts are treating the "armchair rule" as an over-arching framework within which a judge applies the various tools for will construction at his or her disposal. As put by the Court of Appeal of Manitoba in Zindler, [2015 MBCA 33], at para. 14:
Feeney's [Canadian Law of Wills] concludes that "the most recent trend in Canadian cases seems to indicate that evidence of surrounding circumstances should be taken into account in all cases before a court reaches any final determination of the meaning of words" (at para. 10.54). This is true even if the words, themselves, do not appear to be ambiguous or unclear . . .
[34] There is a “golden rule” in the jurisprudence applicable to the interpretation of wills which states that, where there are two interpretations which can be applied to a will, it is the interpretation which favours testacy, rather than intestacy, that should be applied (see Chan Estate v. Chan, [1996] O.J. No. 3124 (Gen Div.) at para. 12 and Frohlich Estate v Wedekind, 2012 ONSC 3775 at para. 22).
[35] In Mladen Estate Belobaba, J. considered the question of whether, in determining whether there is a “contrary intention in the will” to the general rule that a lapsed residuary gift passes on an intestacy, the court is limited to the language in the will or rather the court is to sit in the “testator’s armchair” in order to determine whether there was such a contrary intention.
[36] Relying on the reasoning of Molloy, J. in Campbell v. Shamata, 2002 CarswellOnt 58 (S.C.J.) at para. 7, Belobaba, J. concluded at para. 32 that the latter proposition is correct, stating,
in determining whether there is an intention in the will that is contrary to the general rule in Kossak Estate, supra, that a lapsed residuary gift passes on intestacy, I am entitled to sit in the "testator's armchair" and consider such surrounding circumstances as the testator's knowledge about and relationship with her family. In my view, this is a principled approach that accords with what the Court of Appeal has described as "the basic rule for the construction of wills, that is, to determine the true intention of the testator in light of all the surrounding circumstances:" Barlow v. Hircock, (C.A.) (June 17, 1980, unreported) as cited in Hopkins, Re (1982), 1982 CanLII 2196 (ON SC), 35 O.R. (2d) 403 (Ont. H.C.) at 408; also see Shamas, Re, 1967 CanLII 303 (ON CA), [1967] 2 O.R. 275 (Ont. C.A.) at 278.
[37] This accords with the approach recently confirmed by the Court of Appeal in Ross that the "armchair rule" is an over-arching framework within which the various tools for will construction at the court’s disposal are applied, even if the words of the will under consideration themselves do not appear to be ambiguous or unclear.
[38] In considering whether there is a contrary intention in the will to a lapsed residual gift, the court may have regard to whether there is anything in its terms that would indicate that the testator did not intend to dispose of her entire estate and whether she had a special connection and relationship with her named residuary beneficiaries (see Frohlich Estate v. Wedekind, 2012 ONSC 3775 at paras. 12 -13 and Mladen Estate at paras. 23-24).
[39] From a review of the Will, it is evident that its dispositive provisions are complex and well thought out. It is also clear that Connie had a special and close relationship with her named residuary beneficiaries being her husband Bruce, her sister Mildred and persons of the next generation with whom she was connected through her first husband Hugh (his nieces and nephews) and her second husband Bruce (his two children being her step-children) and she took care in drafting her Will to include all of them by name. I may infer from this that Connie only intended those persons she named to benefit from her estate.
[40] However, I am unable to infer that, by omitting a gift over in the event of Mildred predeceasing her in respect of Mildred’s First Share, Connie intended to create a partial intestacy resulting in division of that share among a class of unnamed distant relatives. She was careful to specifically name in her Will her intended beneficiaries rather than referring to them by class, thus reinforcing the fact that she had special and close relationships with those named (see Frohlich Estate at para. 13).
[41] I am therefore to utilize the armchair rule to attempt to give effect to Connie’s wishes at the time that the Will was made and determine whether there is a “contrary intention in the will” respecting the disposition of Mildred’s First Share, in the event that Mildred predeceased her.
[42] There is no evidence that Connie knew of all persons comprising her traceable next of kin, namely the six second cousins named above or any additional ones who may have been alive at the time that she made her Will, or that she contemplated leaving any portion of her estate to them. Only two of the six living second cousins appeared in response to the Application. Three others who were served did not. Despite considerable effort, the Estate Trustee was unable to find the remaining second cousin, Marion Fuller, in order to effect service on her.
[43] Although Judy deposed to having kept in touch with Connie and Bruce with Christmas and birthday cards and occasional visits at their respective parents’ homes around the time that Connie made her Will, there is no evidence that Connie maintained even that type of limited contact with John, much less with Selena Morton, Margaret McIntyre, Marion Fuller or Alexander Fuller. John indicated in his affidavit that he only met Connie once as a preteen in the summer of 1940, 43 years prior to Connie making her Will.
[44] Had Connie intended to benefit Judy in recognition of their limited contact through exchanges of greeting cards and occasional visits at their respective parents’ homes, she would have named Judy specifically, as she did with each of the other beneficiaries, rather than provide for an intestacy which would include five other second cousins with whom she had no relationship whatsoever.
[45] By contrast, at the time of the making of her Will in 1983, Connie, having been married to Bruce for some five years, had become bonded with Cynthia, treating her like a daughter. They spent considerable time together and shared a number of interests, Cynthia lived close to Connie and Bruce and saw them a few times each week. The evidence also indicated that Connie was very involved in the lives of Gary’s children when they were young, and they referred to her as “Grandma.”
[46] As Cynthia and Gary were Connie’s husband Bruce’s children, it was natural for Connie to form close emotional bonds with each of them and in Gary’s case with his children, particularly since Connie had no children of her own. Connie’s close personal ties with Cynthia and Gary manifested themselves by Connie specifically naming them in her Will as residuary beneficiaries of one-half of Share One (after payment of specific legacies to the nieces and nephews) and recipients of specific legacies from Share Two.
[47] Utilizing the armchair rule I have found a “contrary intention in the Will” confirming that Connie considered Cynthia and Gary to be her closest relatives after her husband Bruce and her sister Mildred. There is no evidence to support the suggestion that, in the event that Mildred predeceased her, Connie intended to benefit a class composed of at least six second cousins, four of whom there is no evidence she ever met or knew of, and only having met a fifth on one occasion 43 years previously when he was a preteen.
[48] The lapsed residuary share identified as Mildred’s First Share does not therefore go out on an intestacy. I find, based upon application of the armchair rule, that the lapsed residuary gift should be paid to Cynthia as the surviving residuary beneficiary at para. 3(g)(i)3 of the Will.
Disposition
[49] It is ordered that service of the Notice of Application on the respondent Marion Fuller be dispensed with.
[50] It is ordered that service on all of the remaining respondents, being all of the persons having potential interests in the portion of the residue of the Estate under consideration, be validated.
[51] For the foregoing reasons, it is ordered and adjudged that the lapsed residuary gift provided at para. 3(g)(i) 1of the Last Will and Testament of Constance Evelyn Stevenson dated April 25 1983 shall be paid to the surviving residuary beneficiary Cynthia Keller a.k.a. Cynthia Stevenson.
[52] The Estate Trustee’s questions set forth a para. 1(a) of the Notice of Application are specifically answered as follows:
(f) Should Mildred’s First Share be distributed in accordance with Mildred’s last will and testament, even though she predeceased Connie? - No
(g) or should Mildred’s First Share be distributed by intestacy or partial intestacy? If so, who is entitled to receive Mildred’s First Share and what percentage should each receive? - No
(h) or should the Will be rectified in such a way that Mildred’s First Share be distributed to the other beneficiaries named in paragraph 3(g)(i)(3), which deals with the distribution of the balance of the First Share? – Yes
(i) or should the Will be rectified in such a way that Mildred’s First Share is to be distributed to the other beneficiaries named in paragraph III(g)(iii), who are to receive Mildred’s Second Share, as a result of Mildred passing way before the testator? If so, what percentages should each receive? - No
(j) or should the income be treated differently from any of the options outlined above? - No
Costs
[53] The parties are strongly urged to settle the issue of the costs of the Application.
[54] If the parties are unable to resolve the issue of costs, they are directed to request a hearing date and time with the Trial Coordinator at Brantford for the court to receive oral submissions on costs, supplemented by Bills of Costs, Facta and authorities. Unless otherwise arranged, the appointment shall be for two hours.
D.A. Broad, J.
Released: November 17, 2022
COURT FILE NO.: CV-22-45-0000
DATE: 20221117
The Estate of Constance Evelyn Stevenson, by its Estate Trustee The Canada Trust Company
Applicant
– and –
The Estate of Mildred Jean Chant by her Estate Trustees George Ronald Pring and Suzanne Lynn Carrel, Cynthia Keller a.k.a. Cynthia Stevenson, Cathy Roszell a.k.a. Cathy Rosell, Linda Willand, Verne Crosby a.k.a Eugene Crosby, Selena Morton a.k.a. Sally Twitchell, John Campbell MacIntyre, Margaret MacIntyre a.k.a. Margaret Tuffin, Marion Fuller, and Alexander Fuller , Respondents
Respondents
Released: November 27, 2022