Court File and Parties

COURT FILE NO.: CV-21-00011770-00ES DATE: 20240819 SUPERIOR COURT OF JUSTICE – ONTARIO

IN THE MATTER OF THE ESTATE OF NAZZARENO COCCIA, deceased

RE: BARRY CORBIN, in his capacity as Estate Trustee of the Estate of Nazzareno Coccia, Applicant AND: THE SHEPHERDS’ TRUST, PONTIFICAL DELEGATION FOR THE SHRINE OF THE HOLY HOUSE OF LORETO, ANTONELLA CIABATTONI and PATRIZIA CIABATTONI, Respondents

BEFORE: B. Dietrich J.

COUNSEL: Archie Rabinowitz and Patrick Harris, for the Applicant Kelly Charlebois, for the Respondent, The Shepherds’ Trust, not appearing

HEARD: June 20, 2024

Endorsement

[1] The late Father Nazzareno Coccia (the “Deceased”) was a retired Catholic priest, who was living in the City of Toronto at the time of his death. He died on October 26, 2020, leaving a last will and testament dated June 15, 2012 (the “Ontario Will”). The Deceased had also executed a will in Italy on July 21, 2009 (the “Italian Will”).

[2] The applicant, Barry Corbin (the “Applicant”), brings this application in his capacity as the Estate Trustee of the Deceased’s estate. The Applicant was appointed after the executor and trustee named in the Ontario Will, Adelina Damiani (“Ms. Damiani”) renounced her appointment.

[3] The Applicant seeks the court’s opinion, advice, and direction regarding the interpretation of the terms of the Ontario Will. The Applicant takes no position on the interpretation. The result of the interpretation will determine who is beneficially entitled to the Deceased’s real property, and possibly other assets, in Italy. The central asset in dispute among the parties is the Deceased’s condominium unit and a garage in Pagliare del Tronto, Italy (the “Condominium”).

[4] None of the respondents have filed a Notice of Appearance in this application, though they have been in contact with the Applicant. The respondent, The Shepherds’ Trust, through its trustee, has submitted its rights. The Deceased’s nearest next of kin are the respondents, Antonella Ciabattoni and Patrizia Ciabattoni, who are the children of a deceased sibling of the Deceased (the “Nieces”). The Nieces reside in Italy. They were served with the application material, made aware of the hearing date, and provided with the videoconference link for the hearing, but they are not in attendance at this hearing.

[5] For the reasons that follow, I find that the Ontario Will revoked the Italian Will. I also find that a partial intestacy was created under the Ontario Will, with the result that the Deceased died intestate with respect to the residue of his estate, which would include the Condominium and other real property owned by him in Italy. Under the applicable law, the Condominium and any other real property owned by the Deceased in Italy would pass to the Nieces, the Deceased’s nearest next of kin who survived him.

Background Facts

[6] The assets of the Deceased’s estate include the Condominium, which the Deceased purchased in 2009 for 109,200 Euros and two real properties in Spinetoli, Ascoli Piceno, Italy.

[7] The Italian Will, made in 2009, provides that all the Deceased’s assets in Italy and Canada are to be paid to the respondent, Pontifical Delegation for the Shrine of the Holy House of Loreto (the “Pontifical Delegation”), located in Loreto, Italy.

[8] The Ontario Will, made in 2012, includes a revocation clause, which reads “I REVOKE all former Wills, Codicils, and Testamentary Dispositions made by me.”

[9] The Ontario Will includes two bequests of religious items and provides that “any money remaining from my Estate after all debts have been paid to be made a donation to the Shepherds’ Trust, 1155 Yonge Street, Toronto, Ontario M4T 1W2”.

[10] The Shepherds’ Trust is a body dedicated to supporting the needs of retired diocesan clergy of the Archdiocese of Toronto.

[11] There is no evidence to suggest that a lawyer was involved in the drafting of either the Italian Will or the Ontario Will. A Notary Public, A. Grassi, appears to have “written down” the Italian Will at the request of the Deceased. Each of the Wills is witnessed by two individuals.

[12] No one has brought a challenge to the validity of the Ontario Will.

[13] There is no evidence to suggest that a proceeding regarding the succession of the Deceased’s property has been brought, or is pending, in Italy.

The Dispositive Provisions of the Italian Will and the Ontario Will

[14] Following a clause that revokes “all former Wills heretofore made by [the Deceased]”, the dispositive provision of the Italian Will reads as follows (as translated from Italian into English):

I hereby constitute as my sole universal heir of all my property, movable assets and real estate, whether present or future, existing at the time of my death in Italy and in Canada, the “Pontifical Delegation for the Shrine of the Holy House of Loreto – Universal Congregation of the Holy House.”

My assets include, inter alia, a third-floor apartment and basement garage in a building located in the Municipality of Spinetoli – township Pagliare del Tronto – at Via Alcide De Gasperi, No. 116, purchased with deed executed by Dr. Biagio Ciampini, Notary Public in Sant’Egido all Vibrata, dated July 7, 2009, registry No. 232.991/52.606.

[15] Following a clause that revokes “all former Wills, Codicils, and Testamentary Dispositions previously made by [the Deceased]”, the dispositive provisions of the Ontario Will read as follows:

a) I DISTRIBUTE my assets as follows:

1. I bequeath the statue of the Good Shepherd that is currently in the lobby of the Catholic Pastoral Centre of the Archdiocese of Toronto … to remain with the Archdiocese of Toronto …
2. Crucifixes being held by the Office of Archives of the Archdiocese of Toronto to remain the possession of the department and to be for their use.
3. Any money remaining from my Estate after all debts have been paid to be made a donation to the Shepherds’ Trust, 1155 Yonge Street., Toronto, Ontario M4T 1W2 with many thanks and prayers for the help during my retirement.

Positions of the Parties

[16] Fabio Dal Cin, on behalf of the Pontifical Delegation wrote a letter to the “Most Excellent Head of the Diocese of Canada” on July 29, 2022. The original letter, written in Italian, and the English translation are attached as an exhibit to the Applicant’s affidavit. In the letter, the Pontifical Delegation proposes that a “shared choice” be reached whereby the Archdiocese of Toronto would manage the Deceased’s estate in Canada according to the Ontario Will without any objection by the Pontifical Delegation, and the Pontifical Delegation would receive the remaining assets of the Deceased existing outside Canada without any objection from the Archdiocese of Toronto and the Shepherds’ Trust.

[17] Included with the letter from the Pontifical Delegation was a Declaration (as translated into English) from Ms. Damiani. In that Declaration, Ms. Damiani declares that “[u]ntil the last days of his life, [the Deceased] has always expressed … the clear desire to leave all his patrimony in Italy to the “Delegazione Pontificia per il Santuario della Santa Casa di Loreto.”

[18] Michael Shuck, the Trustee of The Shepherds’ Trust, wrote to the Applicant on August 8, 2022. In that letter, the Trustee confirmed that it “does not want to accept the Italian property.” Based on the Trustee’s letter, The Shepherds’ Trust remained open to a settlement or other formal arrangement resolving the Italian assets consistent with its position that it would not accept the Italian property.

[19] The Nieces did not file a notice of appearance or any responding material. However, in an email to the Applicant, dated September 26, 2022, the author, Anna Grazia, stated that she represents the Nieces. In that email, she stated (as written), “According to the Italian law, the property [of the Deceased] goes by inheritance to the [Nieces] and in the canadian will, [the Deceased] didn’t write about the house therefore for the Italian law the house belongs to the [Nieces] Antonella e Patrizia. Any other Canadian different provision of Canadian Judge will be challenged in Italy.” Based on this email, it appears that the Nieces assert that a partial intestacy is created under the Ontario Will. In such case, the Nieces, as the Deceased’s nearest next of kin, would inherit all the Deceased’s property undisposed of under the Ontario Will, including the Condominium, which would pass to them under Italian law.

Issues

[20] The issues in this matter are as follows:

1. Does the Ontario Will revoke the Italian Will?
2. If yes, does the Ontario Will completely dispose of the Deceased’s property, wherever situated, or does the Ontario Will give rise to a partial intestacy?

Ontario Law

Formal Validity

[21] The onus of proving the formal validity of the will rests with the propounder of the will: Vout v. Hay, [1995] 2 S.C.R. 876, at p. 887.

[22] The requirements for the formal validity of a will are set out in sections 3 and 4 of the Succession Law Reform Act, R.S.O. 1990, c. S.26 (the “SLRA”).

[23] Section 3 of the SLRA requires a will to be made in writing.

[24] Subject to sections 5 and 6 of the SLRA, a will is not valid unless: a) it is signed by the testator or by some other person in his or her presence and by his or her direction; b) the testator makes or acknowledges the signature in the presence of two of more attesting witnesses present at the same time; and c) two or more of the attesting witnesses subscribe the will in the presence of the testator. Where witnesses are required by this section, no form of attestation is necessary.

[25] A testator’s intent, as expressed in his will, is a legal issue distinct from the formal validity of the will. A testator’s intent is irrelevant to the formal validity of the will: Bayford v. Boes, 2021 ONCA 442, 156 O.R. (3d) 241 at paras. 29-31.

Principles of Interpretation

[26] The court’s role in interpreting a will is to determine the testator’s actual or subjective intention regarding the disposition of their property. In addition to considering the language used in the will, and the will as a whole, the court must construe the will in light of the surrounding circumstances, placing itself in the position of the testator at the time that the will was made: Trezzi v. Trezzi, 2019 ONCA 978 (“Trezzi CA”), at para. 13. This approach is commonly referred to as the “armchair rule”.

[27] The armchair rule requires a court to assume the same knowledge that the testator had at the time of the making of the will. This knowledge includes knowledge of the nature and extent of the testator’s assets as well as the composition of his or her family and the testator’s relationship to the family members.

[28] Extrinsic evidence of a testator’s intentions is generally inadmissible except when the will is equivocal on its face (e.g., the words used may be read equally as applying to two or more persons or things), or where a will is or may be ambiguous without more information regarding the circumstances surrounding the making of the will. In these cases, the evidence of the testator’s intention is admissible. Indirect extrinsic evidence may be used as an aid in construction when the nature and effect of that evidence is to explain what the testator has written, but not what he or she intended to write: Spence v. BMO Trust Company, 2016 ONCA 196, 129 O.R. (3d) 561, at para. 90.

[29] The armchair rule is an over-arching framework within which the court applies the tools for will construction at its disposal. There is no requirement that a will appear ambiguous or unclear before resort to the armchair rule may be had: Ross v. Canada Trust Company, 2021 ONCA 161, 458 D.L.R. (4th) 39.

Conflict of Law and Applicable Law

[30] The SLRA includes conflict of law rules at sections 34-41. In summary, the formal validity of a will, whether of an interest in personal or real property, is governed by the internal law of the place where: (a) the will was made; (b) the testator was domiciled; (c) the testator then had his habitual residence; or (d) the testator then was a national if there was in that place one body of law governing the will of nationals: SLRA, s. 37(1)(a-d).

[31] The effect of a will as it relates to an interest in land is governed by the internal law of the place where the land is situated: SLRA, at s. 36(1).

Expert Evidence on Italian Laws of Succession

[32] To assist the court, the Applicant obtained the opinion of an Italian lawyer, Maria Cristiana Felisi, of the City of Milan, Italy, of the law firm of Maisto e Associati. The opinion addresses the laws of succession in Italy, the applicable law, and the effect of the Ontario Will on the Italian Will.

[33] Ms. Felisi provided expert evidence in a memorandum dated June 11, 2024 (the “Opinion”). She also executed an Acknowledgement of Expert’s Duty.

[34] In the Opinion, Ms. Felisi considered the following three questions:

1. If the Deceased is found by a court in Ontario to have died intestate with respect to his Italian real property, how would the Deceased’s real property be distributed in Italy?
2. Does Ontario or Italian law apply in determining whether the Italian Will was revoked by the Ontario Will?
3. If the Ontario court concludes that the Deceased’s Ontario Will effects a complete disposition of all the Deceased’s property, including Italian real property, such that there is no partial intestacy, how would such a decision of the court in Ontario be recognized and enforced in Italy?

If, under Ontario law, the Deceased died intestate with respect to his real property situated in Italy, how would such real property be distributed in Italy?

[35] In the Opinion, Ms. Felisi confirmed that Italy enforces the European Union Regulation No. 650/2012 (the “Regulation”), which determines the law applicable to international succession. In accordance with the Regulation, the applicable law is determined by a) default criterion; or b) a choice of law made by the testator. [1]

[36] Article 21 of the Regulation provides that in default of a valid election by the testator of the applicable law, the law of the country of last habitual residence upon death will apply to the succession. Ms. Felisi stated that based on the Applicant’s counsel’s advice, s. 36(1) of the SLRA, being the internal law of the place where the Deceased had his last habitual residence, provides that the manner and formalities of making a will, and its essential validity and effect, so far as it relates to an interest in land, are governed by the law where the land is situated.

[37] Ms. Felisi assumed that the conflict of law section 34 (c) of the SLRA would also bar renvoi because the subsection states that “‘internal law’ in relation to any place excludes the choice of law rules of that place.”

[38] Ms. Felisi confirmed that her assumption did not affect her analysis based on Italian law. She confirmed that the Regulation provides no renvoi in matters of formality. Therefore, formality is determined in accordance with the law of Ontario.

[39] Regarding the applicability of renvoi to Italian law on the validity and substantial effect of the Deceased’s Wills, Ms. Felisi commented on the possible ramifications of Italian law applying to the Ontario Will.

[40] Regarding choice of law, Ms. Felisi stated that Article 22 of the Regulation permits a testator to choose, implicitly or explicitly, to subject the succession of his or her property as a whole to the law of citizenship held at the time of the choice of law or at the time of death. Further, a testator could choose a national law, which would not allow him or her to choose the applicable law. If the country whose law is chosen has several territorial units, each with its own succession law rules (like Canada and its provinces and territories), the Regulation provides that the applicable law is determined with reference to the internal laws of the country, which would determine the relevant provincial rules, or in default of such rules, the territorial unit with which the deceased had the closest connection (in this case, Ontario).

[41] Ms. Felisi stated that for a “State”, which does not enforce the Regulation, like Canada/Ontario, Article 34 of the Regulation permits the State to apply the choice of law rules in force in that State, including its rules of private international law in so far as those rules result in a renvoi to the law of a member State of the Regulation, or to the law of another non-member State, which would apply its own law. However, these rules do not apply when the choice of law is elected by the testator: Regulation Article 34, para. 2.

[42] In conclusion, Ms. Felisi opined that the Ontario Will does not evidence any choice of law by the Deceased. Ms. Felisi states that there appears to be no election of the applicable law by the Deceased per the criterion set out in Article 22 of the Regulation (neither an implicit nor explicit choice of law by the Deceased). In accordance with Article 83, para. 2 of the Regulation, Ms. Felisi observed that because the Deceased was a dual citizen of Canada and Italy, he could have executed the Ontario Will in accordance with either Italian or Ontario law, but there is no indication in the Ontario Will which of these two laws the Deceased intended to govern.

[43] Therefore, Ms. Felisi concluded that it follows that the applicable law should be determined based on habitual residence. She wrote “Assuming the Deceased’s habitual residence was Ontario, the applicable law to the Deceased’s succession seems to be the law of Ontario. References made by the law of Ontario to Italian law would be accepted pursuant to Article 34 of the Regulation.”

[44] Ms. Felisi opined that if the Deceased is found by an Ontario court to have died intestate with respect to his Italian real property, then a further inquiry would need to be made before the court could determine how the Deceased’s real property would be distributed. That inquiry would involve whether the law of Ontario directs a renvoi to Italian law regarding the disposition of real property in Italy. If a renvoi were directed, then the real property in Italy would be bequeathed in accordance with the Italian rules of intestate succession (as set out in the Italian Civil Code). Based on those rules, the Italian real property would pass to the Nieces in equal shares. Absent a renvoi, the real property would pass pursuant to the Ontario rules of intestate succession.

Does the law of Italy or the law of Ontario apply in determining whether the Ontario Will revoked the Italian Will?

[45] On revocation, Ms. Felisi opined that Article 24, para. 1 of the Regulation provides that “[a] disposition of property upon death other than an agreement as to succession shall be governed, as regards its admissibility and substantive validity, by the law which, under this Regulation, would have been applicable to the succession of the person who made the disposition if he had died on the day the disposition was made.” And para. 3 of the Regulation provides that “[p]aragraph 1 shall apply, as appropriate, to the modification or revocation of a disposition of property upon death other than an agreement as to succession. In the event of a choice of applicable law in accordance with para. 2, the modification or revocation shall be governed by the chosen law.”

[46] Ms. Felisi goes on to conclude that if no election by the Deceased of the applicable law can be found, the law of habitual residence upon death would apply. This law would be the law of Ontario, with renvoi to Italian law barred pursuant to section 34 (c) of the SLRA. Therefore, the revocation clause under the Ontario Will would have the effect of revoking previous wills under Italian law.

If the Ontario court concludes that the Ontario Will effects a complete disposition of all the Deceased’s property, including the real property in Italy, such that there is no partial intestacy, how would such a decision be recognized and enforced in Italy?

[47] Ms. Felisi opined that if an Ontario court concludes that the Ontario Will effects a complete disposition of all the Deceased’s property, including the Italian real property, and there is no partial intestacy, such a decision would be recognized and enforceable in Italy. However, the decision would need to comply with the relevant Italian law (Italian Law No. 218/1995).

Analysis

[48] Based on the conflict of law rules set out in the SLRA, the formal validity of the Ontario Will is governed by Ontario law. The Ontario Will was made in Ontario while the Deceased was domiciled in Ontario.

[49] I am satisfied that the Ontario Will complies with the formal validity requirements prescribed by the SLRA. It was signed at its end by the Deceased and bears the signature of two attesting witnesses who state that they were present together when the Deceased signed the Ontario Will. The date on which the Ontario Will was signed is shown on the back page of the Ontario Will, and there is an affidavit of execution of one of the witnesses, attesting to the fact that the Ontario Will was signed on the date indicated on the back page.

[50] In the Opinion, Ms. Felisi confirmed that the Regulation provides no renvoi in matters of formality. Therefore, formality is determined in accordance with the law of Ontario.

[51] The effect of the Ontario Will with respect to the real property in Italy, including the Condominium, appears to be governed by the law of Italy, and in particular, the Regulation. Article 21 of the Regulation provides that in default of a valid election by the testator of the applicable law, the law of the country of last habitual residence upon death will apply to the succession. There is no evidence of the testator having made a choice of the law to apply to the succession of his property. The law of the Deceased’s habitual residence at the time of his death is Ontario’s SLRA. Section 36(1) of the SLRA states that the effect of a will as it relates to an interest in land is governed by the internal law of the place where the land is situated.

[52] Section 34 (c) of the SLRA states that for the purposes of the conflict of law rules set out in ss. 36-41, “internal law” in relation to any place excludes the choice of law rules of that place. Therefore, the law of Italy, being the place where the land is situated, applies to the effect of the Ontario Will as it relates to the Condominium and other real property owned by the Deceased in Italy.

Does the Ontario Will revoke the Italian Will?

[53] Pursuant to s. 15 of the SLRA, a will may be revoked by the following: a) the making of another will in accordance with the provisions of the SLRA; b) the making of a written declaration to revoke the will in accordance with the provisions of the SLRA; or c) the burning, tearing, or otherwise destroying of the will by the testator or some person in his or her presence and at his or her direction, with the intention of revoking the will.

[54] Based on this Ontario law, the revocation clause in the Ontario Will would be effective to revoke the Italian Will. The same result would occur under Italian law according to the Opinion: paras. 45 and 46 above.

[55] Under certain circumstances, a revocation clause may be held not to be the intention of the testator. In those circumstances, it could be ignored in the granting of probate. But where a subsequent testamentary document is on its face complete and contains a revocation clause, there is a heavy onus on the party challenging the efficacy of such a revocation clause. The burden would need to be discharged by cogent evidence relating to or about the time when the revocation clause was made: McCarthy v. Fawcett (Official Administrator), 1944 CarswellBC 3 (B.C. S.C.), at paras. 21-26. In the case at bar, there is no evidence relating to or about the time when the revocation clause was made. Nor is there any party challenging the efficacy of the revocation clause in the Ontario Will.

[56] It cannot be known for certain whether the Deceased intended to include the revocation clause in the Ontario Will, which would have the effect of revoking the Italian Will. The only evidence of the Deceased’s intention regarding the Ontario Will is provided by Ms. Damiani in the Declaration she signed. Ms. Damiani signed a Declaration stating that the Deceased had always expressed a clear desire to leave all his patrimony in Italy to the Pontifical Delegation. There are several reasons why this evidence is inadmissible. It is hearsay evidence, it is unsworn, and it is uncorroborated. Further, a third party’s evidence with respect to a deceased person’s intention is inadmissible: Robinson Estate v. Robinson, 2011 ONCA 493, O.J. No. 3084, at para. 27.

[57] It is impossible to know whether the Deceased intended to revoke the Italian Will, or whether the revocation clause in the Ontario Will was included in error. Even if it were included in error, not all errors in wills can be corrected by the court. To correct an error, the court must be satisfied of the following: a) it is clear on its face that a mistake occurred in the drafting of the will; b) the mistake does not accurately or completely express the testator’s intention as determined from the will as a whole; c) the testator’s intention must be revealed so strongly from the words of the will that no other contrary intention can be supposed; and d) the proposed correction of the mistake, by 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: Lipson v. Lipson, 2009 ONSC 66904, (Ont. S.C.J.), at para. 42.

[58] Where the testator himself is mistaken as to the legal effect of the words he approves in his will, rectification of that mistake is not available. In Robinson Estate v. Robinson, 2010 ONSC 3484, aff’d 2011 ONCA 493, leave to appeal to SCC refused, Belobaba J. found, at paras. 29-30, that the testator misunderstood the legal effect of the words in the revocation clause and that Anglo-Canadian courts will not rectify a will to correct the testator’s mistaken belief about the legal effect of the words he reviewed and approved.

[59] I find that there is no admissible evidence before the court that would support a finding that the Deceased did not intend to include a revocation clause in the Ontario Will or that such a clause was not intended to “revoke all former Wills, Codicils, and Testamentary Dispositions made by [him]”, as drafted. All former wills would include the Italian Will. Accordingly, I find that the Ontario Will revoked the Italian Will in its entirety.

Does the Ontario Will completely dispose of the Deceased’s property, wherever situated, or does it give rise to a partial intestacy?

[60] Apart from the bequests of religious items in the Ontario Will, the only dispositive provision reads as follows:

Any money remaining from my Estate after all debts have been paid to be made a donation to the Shepherds’ Trust, 1155 Yonge Street., Toronto, Ontario M4T 1W2 with many thanks and prayers for the help during my retirement.

[61] The only language following this dispositive provision is the sentence immediately preceding the testator’s signature, which reads “IN WITNESS whereof I have set my hand the day and year first written above.”

[62] There is no reference in the Ontario Will to the real property in Italy or to the residue of the Deceased’s estate. The question then becomes whether the Ontario Will includes the real property in Italy, including the Condominium. To find that such real property is included in the Ontario Will would require the word “money” to be construed so broadly as to include land, wherever situated. If “money” cannot be so construed, a partial intestacy would be created under the terms of the Ontario Will in respect of the real property in Italy.

[63] Notwithstanding that there is a preference in the jurisprudence to read a will so as to avoid an intestacy, I find that a fair and reasonable interpretation of the Ontario Will, without straining the language used, results in a partial intestacy in respect of the real property in Italy.

[64] In Chan Estate v. Chan, [1996] O.J. No. 3124, at para. 12, Molloy J. stated as follows:

Courts have often referred to and applied the “golden rule” of construction that requires a will to be read so as to lead to a testacy rather than an intestacy, if that can be done without straining the language of the will or violating the intention of the testator … If the wording of a will is ambiguous, the Court should lean towards a construction which will result in a testacy, particularly where it appears that the testator intended by his will to dispose of all his property. [Citations omitted.] [2]

[65] In my view, to find that the word “money” was intended to include the Deceased’s real property situated in Italy, strains the language of the Ontario Will and is not likely consistent with the Deceased’s intention in so far as it can be gleaned from surrounding circumstances.

[66] In Venczel v. Kovari, 2000 CarswellOnt 36 (Ont. S.C.J.), at para. 21, Himel J. considered the interpretation of the word “money” when construing a will and wrote as follows:

What can be gleaned from the case law is that the word “money” is no longer a word of strict technical meaning and may be interpreted in a flexible way. Until Perrin v. Morgan, supra, the word money was construed in a restrictive way. Generally, a home-made will is treated less strictly than one drawn by a lawyer. The word “money” has been held to connote cash on hand, moneys immediately payable to the testator at call, money in a bank in a current account or on deposit where no long notice of withdrawal is necessary: Williams on Wills, Seventh Edition (Butterworths: London, 1995) page 629. A broader meaning has been given to avoid an intestacy.

[67] While I accept that “money” has been construed in the jurisprudence to extend beyond cash on hand to other forms of liquid assets, I have not been provided with any clear authority in Ontario jurisprudence that supports the proposition that “money”, when used to describe a gift under a will, can be considered to be synonymous with real property, or the whole of one’s undisposed of estate. There is some authority in the jurisprudence of other Canadian provinces for construing “money” to include land and as synonymous with “residue”. [3] In construing the term “money” and considering whether its use in the Ontario Will could extend to the whole of the residue of the Deceased’s estate, the court may resolve the issue by applying the principles of will interpretation.

[68] To determine the Deceased’s actual or subjective intention regarding the disposition of his estate, in addition to considering the language used in the will, and the will as a whole, the court may construe the will in light of the surrounding circumstances: Trezzi CA, at para. 13. The armchair rule requires the court to assume the same knowledge that the Deceased had at the time of the making of the Ontario Will, including the nature and extent of the testator’s assets. There is no requirement that a will appear ambiguous or unclear before resort to the armchair rule may be had: Ross v. Canada Trust Company.

[69] Extrinsic evidence of a testator’s intention is admissible when the will is equivocal or may be ambiguous without more information regarding the circumstances of making the will. For example, in the case of the Ontario Will, could “money” be construed to mean cash and other liquid assets, as well as land, and the entire residue of the Deceased’s estate?

[70] When the Deceased made the Italian Will on July 21, 2009, it is noteworthy that he had just purchased the Condominium a few weeks earlier, on July 7, 2009. In the Italian Will, the Deceased described the Condominium in considerable detail, including the Condominium’s municipal address, and references to the deed and the registry number.

[71] When the Deceased made the Ontario Will, less than three years after making the Italian Will, he made no mention of the Condominium or any assets owned by him in Italy. He only mentioned a statue, crucifixes (all located in Ontario), and money. Given that the Condominium was the most valuable of all the Deceased’s assets, and given that he provided a detailed description of it, and the intended beneficiary of it, in the Italian Will, I find that it is more likely than not that he mistakenly believed that he had already disposed of the Condominium in the Italian Will, and that he did not need to mention it in the Ontario Will. There is no evidence of any intention, implicit or explicit, on the part of the Deceased to lump the Condominium into the disposition of his “money” in the Ontario Will. The context of the making of the Ontario Will leads me to the opposite conclusion. The Ontario Will, which disposes of the Deceased’s “money” to The Shepherds’ Trust in Toronto was made relatively soon after the Deceased made the Italian Will, which disposes of the Condominium to the Pontifical Delegation in Italy. The surrounding circumstances suggest an intention on the part of the Deceased to bequeath his real property in Italy to the Pontifical Delegation, an Italian resident beneficiary, and his “money” or liquid assets to The Shepherds’ Trust, an Ontario resident beneficiary. I find that the facts of the case at bar are distinguishable from the facts in other cases, in which “money” has been construed broadly. None of those cases involved a will in another jurisdiction that disposed of assets of the deceased other than chattels and “money”.

[72] Based on the surrounding circumstances at the time the Deceased made the Ontario Will, it is probable that the Deceased mistakenly excluded his real property (all of which was situated in Italy) from his Ontario Will. It is likely that he did so on the basis of mistaken beliefs. It is probable that the Deceased believed that the real property in Italy would be disposed of under the Italian Will to a beneficiary resident in Italy; that the Ontario Will would not revoke the Italian Will; and that the two Wills would operate concurrently, with the intended result that the Pontifical Delegation would receive the Condominium and The Shepherds’ Trust would receive his money, being his liquid assets.

[73] Unfortunately, because the Ontario Will revoked the Italian Will, the Deceased’s intention cannot be fulfilled. All of the Deceased’s real property remains undisposed of under the Ontario Will. The result is a partial intestacy under the Ontario Will with respect to the Deceased’s real property in Italy, including the Condominium. Accordingly, the real property in Italy passes to the Deceased’s heirs as if he had died intestate.

[74] In the Ontario Will, the Deceased did not stipulate which law he intended to govern the Ontario Will of the succession of his property. Because the real property is situated in Italy, I must consider relevant conflict of law principles. Section 36(1) of the SLRA states that the effect of a will as it relates to an interest in land is governed by the internal law of the place where the land is situated. Therefore, the law of Italy would apply to the effect of the Ontario Will as it relates to the Deceased’s real property in Italy.

[75] According to the Opinion, the applicable law in Italy provides that where the testator did not choose the law that would apply to his will, the law of the country of last habitual residence would apply to the succession of his estate.

[76] However, since I have found that a partial intestacy is created with respect to the real property in Italy, further consideration of the conflict of law principles is necessary with regard to the distribution of this real property to the heirs. In this regard, in the Opinion, Ms. Felisi opined that a further inquiry would be necessary involving whether the law of Ontario directs a renvoi to Italian law regarding the distribution of the real property in Italy. If a renvoi were directed, then such real property would be bequeathed in accordance with the Italian rules of intestate succession (as set out in the Italian Civil Code). Based on those rules, the real property in Italy would pass to the Nieces in equal shares. Absent a renvoi, Ms. Felisi opined that the Italian real property would pass pursuant to the Ontario rules of intestate succession.

[77] The Applicant submits that, under Ontario law, the lex situs applies to the determination of the heirs that would benefit on a partial intestacy respecting the real property in Italy. Section 36(1) of the SLRA directs that the effect of a will as it relates to an interest in land is governed by the internal law of the place where the land is situated. Therefore, Italian law would apply to the determination of the heirs of the real property in Italy, including the Condominium. Section 34 (c) of the SLRA states that the “internal law” of any place (Italy in this case) excludes the choice of law rules of that place. Therefore, Italian law determines the heirs that would take on a partial intestacy. Even if s. 34 (c) did not apply in this case, and renvoi resulted in Ontario law being the applicable law, the result would be the same under Ontario law. Pursuant to s. 47(5) of the SLRA, the Nieces would be the heirs of the Deceased’s property that passes as a result of the partial intestacy.

Disposition

[78] The following Orders shall issue:

1. An Order declaring that the Ontario Will revoked the Italian Will;
2. An Order declaring that a partial intestacy is created under the Ontario Will with respect to the Deceased’s real property in Italy; and
3. An Order that the beneficiaries of the Deceased’s estate, which passes as a result of the partial intestacy created in respect of the Ontario Will, are the Nieces (Antonella Ciabattoni and Patrizia Ciabattoni), each as to an equal share.

Costs

[79] The Applicant seeks his full indemnity costs of this application payable by the Deceased’s estate. He submits that, as the Estate Trustee, he was required to bring this application for the court’s advice and direction. The lack of clarity regarding the administration of the Deceased’s estate arose as a result of the Deceased’s actions in his estate planning. The Applicant submits that his actual fees and disbursements, in the amount of $67,863.98, were reasonably incurred. For example, he had no option but to retain an expert in the laws of succession and conflict of law principles in Italy. This resulted in a disbursement of $7,874.29. Further, the Applicant submits that notwithstanding that none of the respondents filed a notice of appearance, he took care to ensure that the respondents were aware of the evidence and the issues, and that they appreciated that the court’s decision would affect their rights.

[80] Having reviewed the Applicant’s bill of costs, I fix his costs at $67,863.98, inclusive of HST and disbursements, subject to review on a passing of accounts. These costs are payable by the Deceased’s estate within 30 days.

B. Dietrich J.

Date: November 15, 2024

[1] The Regulation only applies to a testator’s choice of law made on or after August 17, 2015, being the date of entry into force of the Regulation. But the Regulation also sets out choice of law rules and the validity of a choice of law election made prior to such date.

[2] See also Frohlich Estate v. Wedekind et al., 2012 ONSC 3775, 2012 CarswellOnt 8099, at para. 22 and Re: Estate of Constance Evelyn Stevenson, 2022 ONSC 6416, 2022 CarswellOnt 16491, at para. 34.

[3] There is jurisprudence out of British Columbia, Nova Scotia, and Alberta that suggests that “money” can be construed synonymously with “residue”. In Thiemer Estate, 2012 BCSC 629, 2012 CarswellBC 1210, the British Columbia Supreme Court suggested that the construction of the word “money” might depend on whether there is a residuary clause in the will. In Prest Bros. Ltd. v. Myers, 2011 NSSC 175, 303 NSR (2d) 104, the Nova Scotia Supreme Court held that a residue clause will be created to broadly encompass any property owned at the time of death, including real property, where the context of the will implies that this is the intention of the testator. In Re Diver (1962), 1962 ABCA 366, 34 DLR (2d) 667 (Alb. S.C.), the Alberta Supreme Court held that, under the circumstances, “residue” and “money” meant the same thing. At p. 674, the court remarked that “a fair reading of the will makes it plain that although not expressly directed, a conversion of the estate was intended.” Accordingly, at p. 674, the court held that the testatrix intended to dispose of her entire estate (that being the whole of her residuary estate) by her will through the words “any money”.