COURT FILE NO.: CV-24-132-00 DATE: 2024-06-06
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Sandra Allan and Marilyn Inga Foster Ms. F. Pottinger, for the Applicants Applicants
- and -
Thunder Bay Regional Health Sciences Foundation, Evelyn Lois Iwachewski, Carol Otte, Judith Irene Iwachewski, Edward Peter Iwachewski, Michael Anthony Iwachewski, Josephine Elizabeth Ann Floen, Teresa Lynn Zeleny, Susan Mary Irene Zeleny Willis, Randall Alan Peter Zeleny, Elizabeth Lukie, James Andrew Lukie, Michael Lukie, John Raymond Lukie, Robert Lukie, Gregory Harry Loskow, Edward Gayoski Jr., Deborah Gayoski, Donna Czigli, John Iwasenko, William Kerelchuk, Laura Harnett and Juliana Barrie K. Commisso, appearing for the Thunder Bay Regional Health Sciences Foundation No one appearing for the other named Respondents Respondents
HEARD: via Zoom on May 16, 2024, at Thunder Bay, Ontario
Madam Justice H.M. Pierce
Reasons on Application
Introduction
[1] The applicants seek the opinion, advice or direction from the court about:
whether the handwritten codicil of the deceased, Lawrence Richard Iwachewski, which was not properly executed, is a valid codicil to his will; and
if the codicil is effective, is the Thunder Bay Regional Health Sciences Foundation the residuary beneficiary pursuant to the terms of the will and codicil?
The answer to both questions is yes, for the following reasons.
The Testamentary History
[2] All individuals with an interest in the will and codicil and the Thunder Bay Regional Health Sciences Foundation have been served with notice of this application. The Foundation made no submissions on the application.
[3] The application sets out the testamentary history in this case. Lawrence Richard Iwachewski (“the testator”) made a properly executed will with the assistance of counsel on February 5, 2001. It was followed by a hand-written document dated December 10, 2019 (“the codicil”).
[4] The testator died on December 19, 2022. He never married and did not have any children. He was predeceased by his parents and by his only sibling, a brother, who also died unmarried and without children.
[5] At the time of the testator’s death, he had seven living maternal cousins and 15 living paternal cousins. One of the paternal cousins who predeceased the testator left a living child.
[6] The will named as estate trustee an individual who later became frail and elderly and unable to perform the duties of Estate Trustee. He died some months after the testator’s codicil was drawn. The formal will also named the testator’s lawyer, as an alternate trustee. The lawyer has since retired from practice.
[7] The codicil named a paternal cousin, “Mike” Iwachewski, as Estate Trustee. However, he has renounced the appointment and consented to the applicants’ appointment. The surviving cousins have been notified of this application and a majority have consented to the applicants’ appointment as Estate Trustees.
[8] One of the applicants, Sandra Allan, was a long-time friend of the testator. At his death, she began the preliminary tasks of an Estate Trustee, contacting family, making funeral arrangements and clearing out his residence. The second applicant, Marilyn Inga Foster, is a paternal cousin. The two women have agreed to work together to administer the estate.
Is the Codicil Valid and Fully Effective?
[9] Section 6 of the Succession Law Reform Act, R.S.O. 1990, c. S.26 authorizes holograph wills. It provides:
- A testator may make a valid will wholly by his or her handwriting and signature, without formality, and without the presence, attestation or signature of a witness.
[10] Section 7 of the Act describes the scope for positioning of a signature on a will:
7(1). In so far as the position of the signature is concerned, a will, whether holograph or not, is valid if the signature of the testator made either by him or her or the person signing for him or her is placed at, after, following, under or beside or opposite to the end of the will so that it is apparent on the face of the will that the testator intended to give effect by the signature to the writing signed as his or her will.
7(2) A will is not rendered invalid by the circumstance that,
(a) the signature does not follow or is not immediately after the end of the will;
(b) a blank space intervenes between the concluding words of the will and the signature;
(c) the signature,
(i) is placed among the words of a testimonium clause or of a clause of attestation,
(ii) follows or is after or under a clause of attestation either with or without a blank space intervening, or
(iii) follows or is after, under or beside the name of a subscribing witness;
(d) the signature is on a side, page or other portion of the paper or papers containing the will on which no clause, paragraph or disposing part of the will is written above the signature; or
(e) there appears to be sufficient space on or at the bottom of the preceding side, page or other portion of the same paper on which the will is written to contain the signature.
[11] Section 21.1 of the Act gives the Superior Court jurisdiction to determine validity of a testamentary document. It provides:
21.1 If the Superior Court of Justice is satisfied that a document or writing that was not properly executed or made under this Act sets out the testamentary intentions of a deceased or an intention of a deceased to revoke, alter or revive a will of the deceased, the Court may, on application, order that the document or writing is as valid and fully effective as the will of the deceased, or as the revocation, alteration or revival of the will of the deceased, as if it had been properly executed or made.
[12] In this case, the holograph codicil substantially complies with the terms of the Act. The testator’s signature does not appear at the end of the document. However, the codicil is dated and includes the testator’s name and address in his own handwriting in the body of the document. It declares his intention to replace the executor named in his previous will because he could no longer serve in that role, and describes the document as a codicil, intended to amend his will. The codicil is dated December 10, 2019. In it, he names a new executor and gives directions for the administration of his estate, describing a charitable bequest to the Thunder Bay Regional Hospital.
[13] There is no doubt that the testator intended the holograph document to have testamentary effect, even though it was not properly executed. I conclude that the holograph codicil of Lawrence Richard Iwachewski dated December 10, 2019, is a valid and fully effective testamentary document and will be accepted by the court as such.
Is the Thunder Bay Regional Health Sciences Foundation the Residuary Beneficiary pursuant to the terms of the will and codicil?
[14] The common law doctrine of cy-près applies to the circumstances of this case. It is defined by P.G. Osborn in A Concise Law Dictionary, 5th ed. (London: Sweet & Maxwell, 1964) at p. 100.
Cy-près. The doctrine that where a settlor or testator has expressed a general intention, and also a particular way in which he wishes it carried out, but the intention cannot be carried out in that particular way, the court will direct the intention to be carried out as nearly as possible in the way desired. The doctrine is more particularly applied to charities. Thus, if a paramount charitable intention appears, a charitable gift will not be void simply because there is no such institution as specified in the gift, but the property will be used for some similar purpose resembling as much as possible the specified object. [Emphasis in original.]
[15] The doctrine of cy-près was also described in Kubiak Estate, Re, 2015 CarswellOnt 12808, 13 E.T.R. (4th) 318 at para. 7:
The underlying purpose of the cy-pres doctrine is to carry out the intention of the settlor or, in this case, the Deceased. Applying this doctrine, the court, pursuant to its inherent jurisdiction, approves the application of trust property to some other object or objects as near as possible to the charitable objects set out by the settlor. In order for a court to exercise such jurisdiction, however, two things must be established: first, that it is impossible or impracticable to carry out the Deceased’s intention; and second, that the Deceased, in making the gift, had a general or overriding charitable intent. [Citation omitted.]
[16] In this case, paragraph 4(c) of the testator’s will directed that if his mother survived him for 30 days, the residue be held in trust for her lifetime to pay for her care, including all her expenses. However, his mother predeceased him, dying on July 16, 2004.
[17] Paragraph 4(d) of the will also directed his trustee to;
pay or transfer the remainder of the residue of my estate to those service organizations who are looking after and providing care to my mother immediately preceding her death, for their own use and benefit absolutely.
[18] He added the following provisions to his codicil:
Article I, Item II ADD CHARITABLE DONATION Thunder Bay Regional Hospital of investment [sic] Legacy that will afford my estate the optimum tax consequences upon my death.
[19] On the second page of the codicil, the testator wrote,
Charitable donations to offset RRSP Fund – Taxes.
To charitable organizations that require my Mother’s use. (discretion) [sic].
[20] When the testator’s will was executed in 2001, I take judicial notice of the fact that Thunder Bay was served by the Port Arthur General Hospital on the north side of the city and the McKellar General Hospital in the south side, both serving the citizens of Thunder Bay.
[21] I also take judicial notice that the Thunder Bay Regional Health Sciences Centre was opened in 2004 and had replaced the older hospitals by the time the codicil was made. Subsequently, the Thunder Bay Regional Health Sciences Foundation was established to support and fund-raise for the hospital.
[22] The codicil specifically references the “Thunder Bay Regional Hospital” as the object of the testator’s charitable donation.
[23] The codicil also directs his executor to have the final say over matters (financial) - “place my mother Cecelia Iwachewski in suitable accommodation (Senior Home) Hospital Care (Disabled).”
[24] As the testator’s mother had died by the time the codicil was drafted, I conclude that the testator was referring to benefitting organizations that had provided care to his mother during her lifetime.
[25] Marilyn Inga Foster deposed in her affidavit that the testator stated to many people that he wished the hospital to be his residuary beneficiary and that was also her understanding. She observed that to track down organizations that had assisted the testator’s mother would be an onerous task. I agree.
[26] She deposed that the testator’s mother was treated at the Thunder Bay Regional Health Sciences Centre, including at the end of her life and that other family members were also treated there.
[27] Sandra Allan deposed that during a visit with the testator in the Thunder Bay Regional Health Sciences Centre in or about December 18, 2022, he indicated to her that he wished to leave his estate to the hospital, a wish he had previously expressed to her. He expressed a wish to have his gift recognized by a plaque on the wall, as others had. The testator died the following morning.
[28] Ms. Allan did not know the testator’s mother and was unfamiliar with any organizations that would have assisted her around the time of her death. However, in clearing out the testator’s belongings, she found a bag of hospital bracelets worn by his mother during her lifetime, indicating that she often received hospital care.
[29] The applicants submit that the vagueness arising from paragraph 4 (d) of the will directing that the residue be paid to “service organizations” looking after and providing care to the testator’s mother can be cured by the terms of the codicil naming the Thunder Bay Regional Hospital and by the affidavit evidence establishing the testator’s intention.
[30] I find that the applicants have shown that it would be impracticable to carry out the testator’s intention to benefit organizations that had assisted his mother during her lifetime. I also find that the applicants have established that the testator had an overriding intention to benefit the hospital.
[31] In Salmon v. Rombough, 2024 ONSC 1186, at para. 100, the court observed, “The trend is toward admitting extrinsic evidence to cure a multiplicity of ills in wills.”
[32] A declaration will therefore issue that the Thunder Bay Regional Health Sciences Foundation is the residuary beneficiary of the will and codicil of Lawrence Richard Iwachewski.
Costs
[33] The reasonable full indemnity costs of this application shall be paid by the Estate of Lawrence Richard Iwachewski.
“originally signed by”
The Hon. Madam Justice H.M. Pierce
Released: June 6, 2024