Court File and Parties

COURT FILE NO.: CV-23-00705534-00ES DATE: 20240513

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: IN THE ESTATE OF JULES BAERT, deceased KIRK BAERT, Applicant

AND:

GREGORY BAERT, JEFFREY BAERT, SARAH BAERT, CORRINE BAERT by her litigation guardian the Public Guardian and Trustee, Respondents

BEFORE: M.D. Faieta J.

COUNSEL: Rob Levesque, for the Applicant Laura Cardiff, for the Public Guardian and Trustee as Litigation Guardian for the Respondent, Corinne Baert No one appearing for the Respondents Gregory Baert, Jeffrey Baert & Sarah Baert

HEARD: May 13, 2024

Endorsement

[1] Jules Baert (“the Deceased”) died in April 2023 at the age of 92. He was survived by his wife, the Respondent Corrine Baert, (“Mrs. Baert”) who is 92 years old. The Deceased was also survived by his three sons, the Applicant Kirk Baert, the Respondents Gregory Baert and Jeffrey Baert.

[2] The Deceased completed and signed a template form Last Will and Testament on March 31, 2012.

[3] The dispositive provisions of the Will were handwritten and read as follows:

I DISTRIBUTE my assets as follows: In the event of my death and my wife’s death, during our April 1- April 30/12 trip to Florida, I leave my one-half interest in the condominium known as 217-1655 Nelson, Vancouver, to my son, Gregory, of Vancouver. The rest of my estate is to be equally divided between my three sons, Gregory, Jeffrey and Kirk, taking into consideration the above legacy to Gregory, in order to provide an exactly equal distribution to each son.

Because I have already made adequate provision for my spouse during our lifetime together, I am not leaving anything further to her. Also, the grandchildren are generously provided for in the Trust accounts with my wife Corrine at Scotia McCleod in Vancouver. Any and all other cash assets and memorabilia are to be distributed as my executors agree. [Emphasis added]

[4] In this Application, amongst other things, the Applicant seeks an Order for the opinion, advice and direction of the Court with respect to the following questions raised by the Will:

1. Is the gift of “the rest of my estate” to Gregory Baert, Jeffrey Baert and Kirk Baert (“the residual gift clause”) conditional upon the testator and his wife having died during an April 2012 trip to Florida?
2. If the answer to question (1) is “yes”, does the estate pass under the intestacy provisions of the Succession Law Reform Act, R.S.O. 1990, c. S.26?
3. Does the addition of the words “any and all other cash assets and memorabilia are to be distributed as my executors agree” have any practical effect?

[5] Neither the Applicant nor the PGT take any position on the interpretive issues identified above. They also agree that the first sentence of dispositive provisions of the Will, shown above, makes the gift of a one-half interest in a Vancouver condominium to Geoffrey conditional on both the Deceased and Mrs. Baert dying during a trip to Florida in April 2012. Because the Deceased and Mrs. Baert survived that trip, the condition was not met and the gift of the Vancouver condominium fails.

Analysis

[6] In Trezzi v. Trezzi, 2019 ONCA 978, at para. 13, M. Jamal J.A, as he then was, stated:

… 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: see Burke, Re (1959), [1960] O.R. 26 (Ont. C.A.), at p. 30; Kaptyn Estate, Re, 2010 ONSC 4293, 102 O.R. (3d) 1(Ont. S.C.J.), at paras. 30-38; and Halsbury's Laws of Canada, "Wills and Estates", (Toronto: LexisNexis Canada, 2016 reissue), at HWE 63.

[7] In Kaptyn Estate, Re, 2010 ONSC 4293, at paras. 30-38, D.M. Brown, J., as he then was, described the general principles for the interpretation of a Will as follows:

A. The objective of the interpretive exercise

30 When a court interprets a person's will, it seeks to determine the disposition of the property intended by the testator, in other words, to ascertain the testator's true intention. The Court of Appeal has observed that the basic rule for the construction of wills is to determine the true intention of the testator in the light of all the surrounding circumstances. How a court should undertake such an exercise was described by the Court of Appeal in Burke, Re where the court gave the following directions to applications judges:

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.

31 In interpreting a will a court seeks to ascertain, if possible, the testator's actual or subjective intent, as opposed to an objective intent presumed by law. What the interpreting judge seeks to avoid is to find himself, in the colourful words of Lord Atkin, as part of that group of judicial personages who have misconstrued the wills of testators and whom the "ghosts of dissatisfied testators...wait on the other bank of the Styx to receive..." Or, as put by Lord Denning in Rowland, Re:

I have myself known a judge to say: "I believe this to be contrary to the true intention of the testator but nevertheless it is the result of the words he has used." When a judge goes so far as to say that, the chances are that he has misconstrued the will. For in point of principle the whole object of construing a will is to find out the testator's intentions, so as to see that his property is disposed of in the way he wished. True it is that you must discover his intention from the words he used: but you must put upon his words the meaning which they bore to him...not the meaning which a philologist would put upon them. And in order to discover the meaning which he intended, you will not get much help by going to a dictionary. It is very unlikely that he used a dictionary, and even less likely that he used the same one as you. What you should do is to place yourself as far as possible in his position, taking note of the facts and circumstances known to him at the time; and then say what he meant by his words.

B. The limited utility of previously decided cases

32 Other will construction cases afford very little assistance to a court in forming an opinion about the intention of the testator in the particular case before it. Since the meaning of words in wills can differ so much according to the context and circumstances in which they are used, "it seldom happens that the words of one instrument are a safe guide in the construction of another." Each case is an authority only on the facts involved, except in so far as it may set forth or explain any applicable rule of construction or principle of law.

C. How a court should approach the words used by a testator in his will

33 As I read the authorities, the prevailing approach to will interpretation requires a court to concentrate on the subjective meaning of the words used by a testator in his will. A court should consider the words used in the light of surrounding circumstances and by considering other admissible evidence, and give the words placed in a will the meaning intended by the particular testator. The cases recognize two qualifications to the subjective interpretation approach: (i) technical legal words likely will be assigned their technical meaning where they have acquired a fixed meaning in law; and, (ii) where used in a will statutory definitions should be given their fixed meaning.

34 I find useful the distinction made in Feeney's Canadian Law of Wills between the task of interpreting the meaning of words and the process of applying principles of construction:

Interpretation is the process of ascertaining the subjective meaning of the testator from the words of his or her will in the light of the surrounding circumstances. Construction is a default process used when attempts at interpretation fail, and it involves the application of rules or operating assumptions concerning presumed intent and meaning when the testator's actual intention and meaning cannot be ascertained from the will and from admissible extrinsic evidence.

Under this approach, courts need not resort to rules of construction when the testator's intention is reasonably clear from the will and other admissible evidence.

D. The role and scope of evidence of surrounding circumstances

35 As the Court of Appeal observed in Burke, Re, in applying the "armchair rule" a court should 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 might reasonably be expected to influence the testator in the disposition of his property." 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 present a tension exists in Ontario law about what evidence of the surrounding circumstances a court may take into account in interpreting a will. Direct evidence of a testator's intention generally is considered inadmissible in the exercise of interpreting a will, whereas as "indirect extrinsic evidence" may be used by a court where the function of such evidence is to explain what the testator wrote, but not what he intended to write.

36 The rationale for this principle of admissibility rests in preserving the role of the written will as the primary evidence of the testator's intention and avoiding displacing the written will with an "oral will" gleaned from evidence of the testator's declarations of intent. An exception exists to the inadmissibility of direct evidence of intent in the case of an equivocation where the words of the will describe two or more persons or things equally well — declarations of testamentary intention can be used to establish which of the persons or things was intended by the testator.

37 Inadmissible direct evidence has included: (i) handwritten notes of the deceased directly stating her intentions regarding the disposition of property; (ii) statements made by the deceased to another about his intention; and, (iii) the instructions the testator gave to her solicitor and the advice she received on the legal effect of the document under interpretation.

38 Admissible indirect evidence of surrounding circumstances includes such matters as: (a) the character and occupation of the testator; (b) the amount, extent and condition of his property; (c) the number, identity and general relationship to the testator of the immediate family and other relatives; (d) the persons who comprised his circle of friends; and, (e) any natural objects of his grant. Cases have also treated as admissible words spoken and written by the testator which have an independent significance to render intelligible something in the will that would otherwise be unintelligible. [Footnotes omitted]

Question #1: Is the gift of “the rest of my estate” to Gregory Baert, Jeffrey Baert and Kirk Baert conditional upon the Deceased and Mrs. Baert having died during an April 2012 trip to Florida?

[8] Both the Applicant and the PGT identify two possible interpretations of this residual gift clause.

[9] On the one hand, the residual gift clause could be viewed as a gift conditional upon the Deceased and Mrs. Baert having died in Florida in April 2012 for the following reasons:

(a) The sentence that contains the residual gift clause immediately follows the previous sentence that contains the condition and does not contain any language that clarifies that it is not subject to the condition. (b) The sentence reflects a gift of the “rest” of the estate. The reference to the “rest” of the estate suggests that the gift is linked back to the gift of the Vancouver condominium which is subject to the condition. (c) The residual gift clause specifically indicates that Gregory Baert’s receipt of the Vancouver condominium is to be taken into consideration in calculating the sons’ respective shares of the estate.

[10] On the other hand, the residual gift clause could be viewed as being independent of whether the Deceased and Mrs. Baert died in Florida in April 2012. If the residual gift clause was conditional on the deaths of the Deceased and Mrs. Baert during their trip to Florida, then there would have been no need for the Deceased to state that he was “not leaving anything further” to Mrs. Baert, nor any need for him to justify that decision by stating that he had “already made adequate provision for her during our lifetime together …”. I infer from the inclusion of the statement that the Deceased was not leaving anything further to Mrs. Baert, that the Deceased intended that the residual gift clause would be effective in a situation where Mrs. Baert survived the trip to Florida. I find that this interpretation reflects the testator’s actual or subjective intention as to how he intended to dispose of his property. This conclusion is also supported by evidence that: (1) the Deceased is not known to have made any further Will in the ten years that followed the trip to Florida; (2) the Deceased adequately provided for Mrs. Baert in that she currently holds the bulk of the couple’s accumulated wealth – about $2 million in investments, and condominiums in Toronto and Vancouver – in her own name whereas the Deceased’s estate hold the relatively modest sum of $400,000.00; (3) the Deceased and Mrs. Baert made each made wills on the same date using the same stationer’s template and neither will named each other as a beneficiary of the other’s will; (4) if the residue gift provision is conditional, then the Will makes no disposition of residue.

[11] Accordingly, the answer to Question #1 is “No”.

Question #2: If the answer to question (1) is “yes”, does the estate pass under the intestacy provisions of the Succession Law Reform Act, R.S.O. 1990, c. S.26?

[12] This question need not be answered given the answer to question is “No”.

Question #3: Does the addition of the words “any and all other cash assets and memorabilia are to be distributed as my executors agree” have any practical effect?

[13] As shown above, the following statement appears after the residual gift clause in the Will:

Any and all other cash assets and memorabilia are to be distributed as my executors agree.

[14] This gift of cash and memorabilia is void as the Deceased has already disposed of his entire estate through the residual gift clause which appears earlier in the Will. Where there are two absolute gifts of the same property, the subsequent gift is to be rejected as repugnant and void: Feeney’s Canadian Law of Wills (4th Ed.) (Toronto: LexisNexis, 2023), at para 10.100.

[15] The residual gift clause has no practical or legal effect.

Decision

[16] To summarize, the answers to the questions posed are as follows:

(a) Is the gift of “the rest of my estate” to Gregory Baert, Jeffrey Baert and Kirk Baert (“the residual gift clause”) conditional upon the testator and his wife having died during an April 2012 trip to Florida? Answer: No. (b) If the answer to question (1) is “yes”, does the estate pass under the intestacy provisions of the Succession Law Reform Act, R.S.O. 1990, c. S.26? Answer: Not applicable given that the answer to Question #1 is “No”. (c) Does the addition of the words “any and all other cash assets and memorabilia are to be distributed as my executors agree” have any practical effect? Answer: No.

[17] Both the Applicant and the PGT seek their costs from the Deceased’s estate. I find that it is fair and reasonable in the circumstances to award them their costs on a full indemnity basis. To move the administration of this Estate forward, they have each incurred legal expenses in order to resolve the ambiguity that resulted from the language used in the Will.

[18] Finally, I thank counsel for their very able submissions.

Mr. Justice M.D. Faieta Date: May 13, 2024