Court File and Parties

COURT FILE NO.: CV-18-1236-ES DATE: 2023/11/22

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Kelly Kurt Plaintiff – and – Robert Darrell Kurt, Roy Sullivan and Heinz Nowak in their capacities as the Estate Trustees of the Estate of Donald Alvin Kurt, Heinz Nowak, in his capacity as the Estate Trustee of the Estate of Culleen Janet Irene Kurt, and Culleen and Donald Kurt Foundation Defendants/Responding Parties

Counsel: Mark Muir Rodenburg, for the Plaintiff and Moving Party Theodore D. Dueck, for the defendants and responding parties, Robert Darrell Kurt, Roy Sullivan and Heinz Nowak in their capacities as the Estate Trustees of the Estate of Donald Alvin Kurt, Heinz Nowak, in his capacity as the Estate Trustee of the Estate of Culleen Janet Irene Kurt, and Culleen and Donald Kurt Foundation Anna Husa, for the Defendants/Responding Parties, Warren Griffin and Giesbrecht. Griffin, Funk and Irwin LLP

HEARD: October 24, 2023

MR. JUSTICE M.J. VALENTE

RULING ON MOTION FOR SUMMARY JUDGMENT

[1] The Plaintiff, Kelly Kurt (the ‘Plaintiff’), brings this motion for summary judgment in the principal amount of $800,000 plus interest and costs pursuant to the alleged legacy left to her by her late father, Donald Alvin Kurt (‘Donald’), in paragraph 3(e) of Donald’s Secondary Will, dated December 17, 2013, (‘Donald’s Secondary Will’).

[2] In considering the plaintiff’s motion for summary judgment, all the parties agree that they are seeking this Court’s opinion, advice and direction with respect to Donald’s Secondary Will.

The Facts

(a) The Parties

[3] Donald and his spouse, Culleen Janet Irene Kurt (‘Culleen’), had four children: David Kurt (‘David’), Kim Kurt (‘Kim’), Kerry Kurt (‘Kerry’) and the Plaintiff. They also had eight grandchildren.

[4] Donald had considerable assets, including an interest in an insurance company. Donald also had a charitable foundation which he established with Culleen. This charitable foundation is the Defendant, the Culleen and Donald Kurt Foundation (the ‘Foundation’).

[5] Donald and Culleen had regularly donated to Christian charities and established the Foundation to support this purpose.

[6] It is admitted by the parties that the couple did not intend to benefit their son David on their passing because David had received shares in Donald’s insurance company.

[7] As for their three daughters, neither Donald nor Culleen had a close relationship with any of them. Kim lived in British Columbia and Kerry in the United States. As for the Plaintiff, she lived in a home on 7 Rush Meadow Street in Kitchener (the “Property”) that Donald had purchased.

[8] The Defendant, Warren Griffin (‘Griffin’), is a licensed Ontario lawyer and a partner in the Defendant law firm, Giesbrecht, Griffin, Funk and Irvine. Griffin drafted wills for each of Donald and Culleen prior to their passing.

(b) Donald and Culleen’s Wills Generally

[9] On December 17, 2013, Donald signed a Primary Will (‘Donald’s Primary Will’) along with Donald’s Secondary Will. On the same day, Culleen also signed a Primary Will (“Culleen’s Primary Will”) and a Secondary Will.

[10] Donald died on October 8, 2016. Culleen died forty-two days later on November 19, 2016.

[11] At the time of Culleen’s passing, Culleen’s Primary Will was in place as amended by a Codicil, dated October 28, 2016, which changed her estate’s executors and trustees but otherwise confirmed the terms of Culleen’s Primary Will. Culleen also left an amended Secondary Will, dated October 28, 2016 (“Culleen’s Secondary Will”).

(c) Donald’s Primary and Secondary Wills

[12] Pursuant to paragraph 3(b) of Donald’s Primary Will, Donald directed the residue of his primary estate to his spouse for her own use absolutely in the event that she survived him for a period of thirty days.

[13] Paragraph (c) of Donald’s Primary Will created a specific gift of the Property to the Plaintiff on condition that Culleen failed to survive Donald for a period of thirty days. The provision provides:

If my spouse fails to survive me for a period of 30 days, I direct my Trustees to transfer my interest in the property located at 7 Rush Meadow Street, Kitchener, free and clear of any mortgages or other liens, and to transfer the contents of such real property other than personal effects, to my daughter, KELLY KURT, if she survives me, for her own use absolutely.

[14] Because Culleen survived Donald by more than thirty days, the parties agree that paragraph 3(c) of Donald’s Primary Will is inoperative, and the Plaintiff is not a beneficiary of Donald’s primary estate.

[15] Pursuant to paragraph 3(c) of Donald’s Secondary Will, Donald directed the residue of his primary estate to Culleen absolutely should she survive him for a period of thirty days. Paragraph 3(c) of Donald’s Secondary Will states:

Provided that my spouse, CULLEEN JANET IRENE KURT, survives me for a period of 30 days, I direct my Trustees to pay, transfer and deliver the residue of my Primary Estate to my spouse, CULLEEN JANET IRENE KURT, for her own use absolutely.

[16] Notwithstanding that paragraph 3(c) of Donald’s Secondary Will directed the residue of his primary estate be paid to Culleen, all parties agree based on the record before me that since Culleen survived Donald by some forty-two days, the residue of Donald’s secondary estate was properly transferred to her.

[17] Paragraph 3(e) of Donald’s Secondary Will created a legacy to the Plaintiff pursuant to the following terms:

To pay the sum of Eight Hundred Thousand Dollars ($800,000), minus the value of the property being transferred to her in accordance with paragraph 3(c) of this, my Last Will and Testament, to my daughter, KELLY KURT, if she survives me. In the event that my daughter, KELLY KURT is not alive at my death but has left issue surviving then alive, I direct my Trustees to divide such gift among her issue then alive in equal shares per stirpes.

[18] Paragraph 3(d) of Donald’s Secondary Will provided for an $800,000 legacy to Kim should Culleen fail to survive Donald for a period of thirty days.

[19] Finally, paragraph 3(f) of Donald’s Secondary Will directed Donald’s trustees to pay his third daughter, Kerry, the sum of $800,000 should she survive him.

(d) Culleen’s Primary and Secondary Wills

[20] Turning to the wills of Culleen, paragraph 3(c) of Culleen’s Primary Will states:

If my spouse fails to survive me for a period of 30 days, I direct my Trustees to transfer my interest in the property located a 7 Rush Meadow Street, Kitchener, free and clear of any mortgages or other liens, and to transfer the contents of such real property other than personal effects, to my daughter, KELLY KURT, if she survives me for her own use absolutely.

[21] Culleen’s Primary Will gave the residue of her primary estate to the Foundation should Donald predecease her as was indeed the case.

[22] Paragraph 3(d) of Culleen’s Secondary Will provides a legacy to the Plaintiff in the following terms:

To pay the sum of Eight Hundred Thousand Dollars ($800,000), minus the value of the property being transferred in accordance with paragraph 3(c) of my Primary Last Will and Testament, to my daughter, KELLY KURT, if she is alive at my death …

[23] As with Culleen’s Primary Will, so too with her Secondary Will, the residue of the estate was bequeathed to the Foundation in the event that Donald should predecease Culleen.

Position of the Parties

[24] The parties agree that the Property was properly transferred to the Plaintiff on September 7, 2017, pursuant to paragraph 3(c) of Culleen’s Primary Will. The parties also agree that the value of the Property as at the date of transfer was $422,750. Furthermore, the parties agree that a legacy of $377,250 was properly payable to the Plaintiff pursuant to paragraph 3(d) of Culleen’s Secondary Will and that the sum has been paid.

[25] The parties disagree, however, with respect to the interpretation of paragraph 3(e) of Donald’s Secondary Will. The Plaintiff submits that because she survived Donald and there is no property being transferred to her either under paragraph 3(c) of Donald’s Secondary Will or pursuant to paragraph 3(c) of Donald’s Primary Will, the clear language of paragraph 3(e) of Donald’s Secondary Will requires that Donald’s estate pay her the sum of $800,000. The Plaintiff submits that her interpretation of paragraph 3(e) of Donald’s Secondary Will is clear on its face, and therefore, because there is no genuine issue requiring a trial, summary judgment should be granted in her favour in accordance with Rule 20.04 of the Rules of Civil Procedure, R.R.O. 1990, Reg 194.

[26] In the alternative, the Plaintiff submits that where two gifts in a will are irreconcilable, so that they cannot possibly stand together, the gift which is posterior in position, shall prevail (see Masoud, Re (1959), 16 D.L.R. (2d) 134 (Ont.H.C.) (‘Masoud’)). The Plaintiff therefore argues that although paragraphs 3(c) and 3(e) of Donald’s Secondary Will are inconsistent on their face, reading Donald’s Secondary Will as a whole, as one should, the subsequent gift in paragraph 3(e) should be read as overriding paragraph 3(c) to give effect to Donald’s intention to pay the sum of $800,000 to the Plaintiff.

[27] For their part, the Defendants are aligned in their interpretation of paragraph 3(e) of Donald’s Secondary Will. They argue that paragraph 3(c) of Donald’s Secondary Will is a residual clause that leaves the entire residue of Donald’s secondary estate to Culleen if she survives him by more than thirty days. They submit that paragraph 3(e) of Donald’s Secondary Will represents a “gift over” to which the court should not give effect. It is also the Defendants’ position that paragraph 3(e) of Donald’s Secondary Will contains a drafting error. The reference to paragraph 3(c) in paragraph 3(e) of Donald’s Secondary Will was intended to refer to paragraph 3(c) of Donald’s Primary Will. The Defendants argue that it follows that because paragraph 3(c) of Donald’s Primary Will is inoperative, on account of the transfer of the Property being conditional on Culleen not surviving Donald for more than thirty days, so too is paragraph 3(e) of Donald’s Secondary Will.

Legal Principles

[28] The court’s task in interpretating a will is to determine the testator’s actual or subjective intention as to how he or she intended to dispose of his or her property in light of all of the surrounding circumstances. The task requires the court to place itself in the position of testator at the time the will was made. (see: Trezzi v. Trezzi 2019 ONCA 978 (‘Trezzi’) at para. 13).

[29] This principle of will interpretation is commonly known as the “armchair rule”. The Court of Appeal in Trezzi describes the application of “armchair rule” as requiring the court to:

… put itself in the place of the testator at the time he made his will and concentrate “on the circumstances which then existed and which reasonably be expected to influence the testator in the disposition of his property” [quoting from Burke, Re (1959), [1960] O.R. 26 (Ont. C.A.)]. Due weight should be given to such circumstances as were known to the testator in so far as they bear on the intention of the testator” (at para. 35).

[30] In Trezzi, the Court of Appeal also provides assistance with respect to what surrounding circumstances a court may consider in the interpretation of a will. Whereas indirect extrinsic evidence may be used by the court to explain what the testator wrote, direct extrinsic evidence of a testator’s intention generally is considered inadmissible in interpreting a will (para. 36).

[31] Indirect extrinsic evidence includes the character and occupation of the testator, the amount and condition of the testator’s property, and the number, identity, and general relation of the immediate family and relatives of the testator (see: Marion v. Marion Estate, [2009] O.J. No. 887).

[32] Inadmissible direct extrinsic evidence is typically third-party evidence attesting to the testator’s intentions and has been found to include statements made by the testator to another about his intentions, the instructions the testator gave to her solicitor and the advice the testator received on the legal effect of the document (see: Trezzi at para. 37).

[33] The policy reason for the exclusion of direct extrinsic evidence is clear: routine admissions of evidence of third parties about a testator’s intentions would create uncertainty in estate litigation if disappointed beneficiaries could challenge a will based on their own beliefs as to the testator’s intentions (see: Love v. Wheeler, 2019 ONSC 4427 at para. 23).

[34] There are, however, exceptions to the inadmissibility of direct extrinsic evidence. One exception is in the case of “an equivocation where the words of the will describe two or more persons or things equally well” (see: Trezzi at para. 37). In that instance, “declarations of testamentary intention can be used to establish which of the persons or things was intended by the testator (see: Trezzi at para. 37).

[35] Additionally, direct extrinsic evidence in the form of the testator’s instructions to the drafting solicitor can be considered to establish a drafting error where, as Justice Belobaba states in Re Estate of Blanca Esther Robinson, [2010] O.J. No. 2771 (‘Robinson Estate SCJ’), and affirmed in Rondel v. Robinson Estate, 2011 ONCA 493 (‘Robinson Estate OCA’), the evidence “comes from the solicitor who drafted the will, made the error and can swear directly about the testator’s instructions” (at para. 26). In approving Justice Belobaba’s observation, the Court of Appeal stated that in the case of a drafting error, “extrinsic evidence of the testator’s circumstances and those surrounding the making of the testator’s will may be considered, even if the language of the will appears clear and unambiguous on first reading” (at para. 24).

[36] Following the Robinson Estate SCJ and Robinson Estate OCA decisions, Justice Matheson in Darradick v. McKeand Estate, 2012 ONSC 5622 and Justice Greer in The Bank of Nova Scotia Trust Company v. Haugrad, 2016 ONSC 8150 admitted in evidence the testator’s will instructions to the drafting solicitor to both determine the testator’s intention and correct an unintended error by the drafter of the will. Furthermore, in the very recent decision of this court in Gorgi v. Ihnatowych, 2023 ONSC 1803, Justice Sanfilippo admitted the evidence of the drafting solicitor where the lawyer conceded that the testator’s instructions had not been carried out by him in the drafting of the will. The evidence of the drafting lawyer was admitted to the “extent that it pertain[ed] to the circumstances surrounding his preparation of the Will, the execution of the Will by the testator and the testator’s instructions to” the drafting lawyer (at para. 30).

[37] In interpreting paragraph 3(e) of Donald’s Secondary Will, I am also reminded of the guidance provided by Justice Pattillo in Lipson v. Lipson, 2009 ONSC 66904 (‘Lipson’). In Lipson, the court found that where it was readily apparent that there were mistakes in the secondary estate will read on its own, it was appropriate when considering the testator’s will as a whole, to read both the primary and secondary wills together as one will (at para. 46). Given what I view as a clearly apparent error in paragraph 3(e) of Donald’s Secondary Will to the extent that it refers to paragraph 3(c) of the same will, I am of the opinion that it is appropriate to read together Donald’s Primary Will and Secondary Will to determine his intention.

[38] Justice Pattillo also observes in Lipson that it has long been established that in interpreting a will, the court has the power to delete or add words by necessary implication (at para. 32). As Justice Pattillo points out the power to delete or add words to a will applies not only in circumstances where a word or words are omitted but also in those instances where an incorrect word or words are inserted in the will. However, in either case, before the court can delete or insert words to correct an error, the court must be satisfied that:

(i) upon a reading of the will as a whole, it is clear on its face that a mistake has occurred in the drafting of the will; (ii) the mistake does not accurately or completely express the testator’s intentions as determined from the will as a whole; (iii) the testator’s intention must be revealed so strongly from the words of the will that no other contrary intention can be supposed; and (iv) the proposed correction of the mistake, by the deletion of words, the addition of words or both must give effect to the testator’s intention, as determined from a reading of the will as a whole and in light of the surrounding circumstances. (see: Lipson at para. 42)

Analysis

[39] In my opinion, just as it is clear on the face of Donald’s Secondary Will that there is a mistake in paragraph 3(c), so too is there a mistake in paragraph 3(e) of the same will. In paragraph 3(c) of Donald’s Secondary Will, the testator directs his trustees to pay the residue of his primary estate to Culleen should she survive him. The direction is given to Donald’s trustees notwithstanding that Donald’s Secondary Will solely addresses the assets in his secondary estate and the subject matter of Donald’s Primary Will is exclusively his primary estate, including any residual assets. In recognition of this drafting mistake, all parties agree that because Culleen survived her spouse by some forty-two days, the residue of Donald’s secondary estate is properly transferable to her pursuant to paragraph 3(c) of Donald’s Secondary Will.

[40] Likewise, paragraph 3(e) of Donald’s Secondary Will contains a drafting error. This paragraph refers to the “property being transferred to [the Plaintiff] in accordance with paragraph 3(c)” of the same will. However, as I have previously stated, paragraph 3(c) of Donald’s Secondary Will is a residual clause. The paragraph makes no reference to any property being transferred to the Plaintiff. On the other hand, paragraph 3(c) of Donald’s Primary Will directs Donald’s trustees to transfer his interest in the Property to the Plaintiff should Culleen not survive him for thirty days. Whereas in her affidavit the Plaintiff suggests the possibility of a drafting error in paragraph 3(e) in Donald’s Secondary Will, I view the reference to property being transferred to her pursuant to paragraph 3(c) of the Secondary Will as an obvious error on the face of the document.

[41] I am also of the opinion that the mistake fails to accurately express Donald’s intention as determined from reading Donald’s Primary and Secondary Wills as a whole. While I accept that the Plaintiff’s interpretation of paragraph 3(e) of Donald’s Secondary Will may be rationalized in isolation from a reading of both of Donald’s wills as a whole, I am guided by the instruction of Justice Pattillo in Lipson to read both the primary and secondary wills together as one will where it is readily apparent that mistakes were made in the secondary estate will.

[42] With that instruction, and turning to Donald’s Primary Will, the Plaintiff and the Defendants all agree that paragraph 3(c) of Donald’s Primary Will is inoperative because the transfer of the Property to the Plaintiff is conditional on Culleen failing to survive Donald by more than thirty days. It is undisputed that Culleen survived her spouse by forty-two days. Because the Property was not transferred to the Plaintiff pursuant to paragraph 3(c) of Donald’s Primary Will, it follows that paragraph 3(e) of Donald’s Secondary Will which references the same and only asset being transferred to the Plaintiff must also be inoperative. In my view this conclusion is consistent with Donald’s intention, as expressed in both his Primary Will and Secondary Will. His intention was to leave his primary and secondary estates, after payment of liabilities, to Culleen should she survive him for more than thirty days and only in the event that she failed to do so that the Property be transferred to the Plaintiff and the stipulated legacies be paid.

[43] To my mind, the reference to “the value of the property being transferred to” the Plaintiff in paragraph 3(e) of Donald’s Secondary Will reveals the testator’s intention so strongly that no other contrary intention can be justified. Donald’s use of the phrase “being transferred” suggests the happening of a present event: the transfer of property to the Plaintiff. However, the property described in paragraph 3(c) of Donald’s Primary Will was not transferred to the Plaintiff due to Culleen’s survivorship of Donald by some forty-two days. The inclusion of the phrase “being transferred” makes clear that the Plaintiff is to receive the legacy in paragraph 3(e) of Donald’s Secondary Will in circumstances where the Property was transferred to her under paragraph 3(c) of Donald’s Primary Will, and it unquestionably was not. In short, the legacy to the Plaintiff, like all the legacies in Donald’s Secondary Will, is tied to Culleen’s survivorship of her spouse.

[44] To give effect to Donald’s intentions, I would propose to correct the mistake in paragraph 3(e) of Donald’s Secondary Will by deleting the words “of this, my Last Will and Testament”, and inserting in their stead, “of my Primary Will”. It is my view that this proposed correction would give effect to Donald’s intention as determined from a reading of Donald’s wills as a whole but subject to confirmation after taking into account the surrounding circumstances.

[45] All the parties agree that in considering an appropriate amendment to paragraph 3(e) of Donald’s Secondary Will, I may consider indirect extrinsic evidence. The evidence of the surrounding circumstances which existed at the time of the wills’ execution, and which reasonably might be expected to influence Donald in the disposition of his property, include:

(a) Donald had four children: David, Kim, Kerry and the Plaintiff; (b) Donald had considerable assets, consisting of interests in several corporations, including an insurance company; (c) Donald also had a charitable foundation which he established with his wife, Culleen; (d) None of the children were involved in the charitable foundation; (e) David had received shares in Donald’s insurance company prior to Donald’s passing; (f) Donald had eight grandchildren; (g) Donald did not have a close relationship with any of his daughters; and (h) Donald had approximately $8 million in assets to bequeath on his death.

(collectively the “Indirect Evidence”.)

[46] The parties disagree, however, with respect to my consideration of direct extrinsic evidence from Griffin regarding the will instructions provided to him by Donald. The Plaintiff objects to my consideration of this direct extrinsic evidence because in her submission, Griffin does not admit to a drafting error in Donald’s Secondary Will. In support of this position, the Plaintiff relies on the lawyer’s statement of defence wherein he pleads that he was not negligent in the preparation of the wills and that the wills do not contain ambiguities or drafting deficiencies. The Plaintiff further submits that her position is supported by Griffin’s various responses to her request to admit. Instead of agreeing or denying that there “are no errors in the drafting of paragraph 3(e)” of Donald’s Secondary Will, Griffin responds in his answer by suggesting whether there are errors in the will or not is not a fact at all but rather argument. The Plaintiff also characterizes Griffin’s responsive statement that there “appears to be an error” in paragraph 3(e) of Donald’s Secondary Will to the extent that it “was likely intended to reference back to Donald’s Primary Will” as a mere guess or speculation.

[47] If there was any equivocation in Griffin’s acknowledgement of a drafting error in his response to the Plaintiff’s request to admit, in my view the drafting lawyer explicitly confirmed his error by stating in his affidavit that the reference to paragraph 3(c) of Donald’s Secondary Will was “intended to reference back to Donald’s Primary Will”. Additionally, in Griffin’s examination for discovery, he admitted that he mistakenly omitted to include in paragraph 3(e) of Donald’s Secondary Will (as well as in paragraph 3(f)), the provision that the gift was to be paid only in the event that Culleen should fail to survive Donald for a period of thirty days.

[48] Based on Griffin’s statements under oath, I find that as the drafting lawyer Griffin has admitted to errors in the preparation of Donald’s Secondary Will, thereby permitting the court to consider Donald’s will instructions to him to both determine his intentions and correct an unintended drafting error.

[49] The following is a summary of the salient instructions provided by Donald to Griffin regarding the preparation of the wills and the circumstances surrounding the execution of the wills as deposed by Griffin in his affidavit:

(i) Donald did not intend to provide for his son, David, who had previously received shares in Donald’s insurance company; (ii) Donald wished to treat his three daughters and eight grandchildren equally; (iii) Donald wished to bequeath $800,000 to each of his three daughters; (iv) Donald always represented to Griffin that the Plaintiff was to be treated equally with her siblings. There was never any suggestion that the Plaintiff would receive a house over and above an $800,000 legacy; (v) While Donald considered making the bequests to his three daughters before the residue of Donald’s primary and secondary estates were paid to Culleen, that was not his final instruction; (vi) Donald’s final instruction was that should Culleen survive him by thirty days, his primary and secondary estates were to pass to her after payment of all liabilities and only if Culleen predeceased Donald would the Property be transferred to the Plaintiff under Donald’s Primary Will and the various legacies be paid to the daughters. In that instance the Plaintiff was to receive the sum of $800,000 less the value of the Property; and (vii) Between October 2012 and December 2013, Griffin drafted and revised Donald’s wills on numerous occasions. Donald, along with Culleen, signed the final versions of his wills on December 17, 2013

(collectively, “Direct Evidence”.)

[50] I accept Griffin’s evidence. His evidence is supported by his handwritten notes taken contemporaneously during his meetings with Donald on October 25, 2012 and in early 2013. Furthermore, Griffin’s evidence is unchallenged by any conflicting evidence and unaffected by cross-examination.

[51] I do not view as important that the will drafting process took some fifteen months. Regardless of the care that may have been taken by Griffin in the drafting of Donald’s Secondary Will, the will contains an unintended error in that Donald’s instructions have not been carried out in paragraph 3(e) of his Secondary Will. The provision does not accurately or completely express the testator’s intentions when reading Donald’s Primary and Secondary Wills as a whole and in light of the Indirect Evidence and the Direct Evidence. I conclude that Donald’s intention was that the Plaintiff was to receive the Property and a legacy equal to $800,000 less the value of the Property only in the event that Culleen should predecease him, and I interpret Donald’s wills, including paragraph 3(e) of Donald’s Secondary Will, in such manner. To give effect to Donald’s intention and given that I am satisfied that the four principles set out in Lipson have been established to support amending paragraph 3(e) of Donald’s Secondary Will, I am prepared to order the deletion of the words, “of this, my Last Will and Testament” and in their place, the addition of the words, “my Primary Will”. This amendment will give rise to Donald’s intention, as determined from a reading of the wills as a whole and in light of the surrounding circumstances as I have found them.

[52] Should I reject, as I have, the Plaintiff’s position that there is no drafting error in Donald’s Secondary Will, the Plaintiff nonetheless urges me to set aside my interpretation of the subject paragraph to require Donald’s secondary estate to pay her an $800,000 gift on the basis of a long established principle of will interpretation cited with approval by the Ontario Divisional Court in Finucci (Estate of) v. DiTommaso 2002 ONSC 31109 (‘Finucci’). That principle provides that where two clauses or gifts are irreconcilable, so that they cannot stand together, as they are in the case of Donald’s Secondary Will with the residue of his secondary estate transferred to Culleen in paragraph 3(c) and a gift of money subsequently bequeathed to the Plaintiff in paragraph 3(e), “the clause or gift which is posterior in local position shall prevail, the subsequent words being considered to denote a subsequent intention” (see: Finucci at para. 21 quoting from Masoud). As further justification for the position that the subsequent gift of $800,000 should be paid to her, the Plaintiff relies on the guidance provided in Kaptyn Estate, Re 2010 ONSC 4293 (‘Kaptyn’), where Justice Brown of this court, as he then was, explains the principle of will interpretation in this way:

When faced with conflicting provisions in a will, a court should make every effort to reconcile them, rather than ignore one or the other of them, or call any of them void for uncertainty. Where inconsistencies exist in the same will, a rule of thumb of last resort permits a court to prefer the latter of the two inconsistent provisions … (at para. 162).

[53] As the court states in Kaptyn, however, the preference of the latter of two inconsistent provisions is a “rule of thumb of last resort” and only if “the will and surrounding circumstances provide no means of reconciling the two clauses” (at para. 162). That is not the case of Donald’s wills. By reading Donald’s Primary and Secondary Wills as a whole in light of the surrounding circumstances as determined by me, the apparent contradictory clauses are indeed reconcilable.

[54] Finally, the Plaintiff argues that it would be less than equitable to treat her any differently than her sibling, Kerry, who received a gift of $800,000 pursuant to a provision in Culleen’s Secondary Will that is almost identical to paragraph 3(e) of Donald’s Secondary Will. Paragraph 3(e) of Culleen’s Secondary Will reads in part as follows:

To pay the sum of EIGHT HUNDRED THOUSAND DOLLARS ($800,000), minus the value of the property being transferred in accordance with paragraph 3(c) of my Primary Last Will and Testament, to my daughter, KERRY KURT, if she is alive at my death.

[55] The Plaintiff submits that just as no property was transferred to her under paragraph 3(c) of Donald’s Secondary Will, so too was no property transferred to Kerry under paragraph 3(c) of Culleen’s Primary Will, but nonetheless, Kerry was paid a legacy of $800,000 by Culleen’s secondary estate.

[56] I am not persuaded by this argument. Firstly, the payment of the $800,000 legacy pursuant to paragraph 3(e) of Donald’s Secondary Will would result in a total of $1,600,000 being paid to the Plaintiff; that result is expressly contrary to the intentions of Donald and his instructions to Griffin. Secondly, the condition precedent to payment of the $800,000 gift to Kerry was satisfied pursuant to Culleen’s Secondary Will unlike the proposed legacy to the Plaintiff under Donald’s Secondary Will. That condition precedent is the passing of Culleen who had survived Donald by some forty-two days.

Disposition

[57] For all the above reasons, I reject the Plaintiff’s interpretation of paragraph 3(e) of Donald’s Secondary Will, and therefore, dismiss the Plaintiff’s motion for summary judgment for payment of the principal sum of $800,000 pursuant to the same paragraph of Donald’s Secondary Will.

[58] In interpreting Donald’s Secondary Will and having found that the four conditions to correct an error in a will, as stipulated in Lipson, have been satisfied, I also order that paragraph 3(e) of Donald’s Secondary Will be amended to delete the words, “of this, my Last Will and Testament” and in their stead the words, “my Primary Will” be added.

Costs

[59] The parties are encouraged to agree upon an appropriate cost disposition. If the parties are not able, however, to agree on costs, they may make brief written submissions to me by email to my judicial assistant at lori.rebelo@ontario.ca and to Kitchener.SCJJA@ontario.ca. The party seeking costs may have fourteen days from the release of this decision to deliver their submissions; the responding party a further fourteen days to deliver their response. I will also permit a further seven days for reply, if any. Each party’s initial cost submissions shall not exceed three double-spaced pages, exclusive of offers to settle, bills of costs and authorities while reply submissions shall not exceed two double-spaced pages. If no submissions are received within this time frame, the parties will be deemed to have resolved the issue of costs, or alternatively, I will decide the issue based on the materials received within the stipulated timelines.

Mr. Justice M.J. Valente Released: November 22, 2023