Reasons for Judgment

Court File No.: CV-24-1472
Date: 2025-05-02
Ontario Superior Court of Justice

Between:
Richard Spencer, in his capacity as the Personal Representative of the Estate of Floyd Kersey
Applicant
– and –
Dianna Spencer, Lane Kersey, Robert Kersey Jr., Keisha Kersey, Latende Henry, Betty Kersey, Chantu Johnson, David Johnson and Melissa Johnson-Evans
Respondents

John Morrissey, for the Applicant
Dianna Spencer, Lane Kersey, Robert Kersey Jr., Keisha Kersey, Latende Henry, Betty Kersey, Chantu Johnson, David Johnson, and Melissa Johnson-Evans, acting in person

Heard: April 8, 2025

Released: May 2, 2025

Brian D. Dubé

A. Nature of the Motion

[1] The applicant, Richard Spencer, brings an Application, as amended on December 19, 2024, pursuant to r. 14.05(3)(d) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”), seeking the court’s interpretation of the disposition provisions contained in Article 7 of the Last Will and Testament of Floyd Kersey, dated February 5, 1983, including who the beneficiaries are.

[2] Additionally, the applicant seeks costs of this Application, payable to the applicant out of the residue of the Estate of Floyd Kersey on a full indemnity basis.

[3] This application is unopposed. The uncontested facts are as follows.

B. The Background Facts

[4] My review of the background evidence is limited to those facts that are admissible, significant to the central issues, or that provide context necessary to appreciate and determine the relevant issues.

[5] Floyd Kersey (the “Deceased”) of Ypsilanti, Michigan died on January 5, 1995, with a Last Will and Testament dated February 5, 1983.

[6] The Deceased was predeceased by his wife, Geraldine Kersey (“Geraldine”), who died on October 24, 1990.

[7] Despite the Deceased having been deceased for approximately three decades, the Deceased and his late wife, Geraldine, remain the registered owners of a cottage property located in Shrewsbury, Ontario, known municipally as 18457 Raglan Road, NOP 1A0 (the “Cottage”). Both estate trustees named in the Will are now deceased.

[8] By Letter of Authority for Personal Representative dated November 22, 2023, the State of Michigan Probate Court, County of Washtenaw, appointed the Deceased’s grandson, the applicant, Richard Spencer, as personal representative of the Deceased’s estate.

[9] The reason the applicant applied to become the personal representative of the Deceased’s estate was so that he could have Letters of Authority for Personal Representative resealed here in Ontario. This, in turn, would allow the applicant to deal with the Cottage in his capacity as a personal representative of the Deceased’s estate.

[10] The applicant commenced the Application because he is unable to proceed with an Application to reseal the Letters of Authority for Personal Representative due to the fact that it remains unclear who the beneficiaries of the Deceased’s estate are with respect to the real property that the Deceased owned in Canada.

[11] The Ontario Superior Court of Justice has jurisdiction over this matter pursuant to r. 36(1) of the Succession Law Reform Act, R.S.O. 1990, c. S.26 (the “SLRA”) notwithstanding the fact that the Will in question belongs to a citizen of the United States of America, due to the issue being one of the disposition of real property located in Ontario.

[12] The applicant is therefore seeking a determination of rights that depend on the interpretation of certain dispositive provisions in the Deceased’s Will at Article 7.

[13] Article 7 of the Deceased’s Will reads as follows:

IT IS FURTHER OUR JOINT WILL that we give, devise, and bequeath all the rest, residue and remainder of any estate or property which we, or the survivor of us may die seized or possessed in Canada to our aforesaid children, and grandson, RICHARD SPENCER, DIANNA M. SPENCER, ROBERT G. KERSEY, PAULETTE GAMBREL, and LANE S. KERSEY, equally, share and share alike; provided, however, that should our daughter DIANNA M. SPENCER predecease us, then her share of said property shall be divided equally among her children, share and share alike, other than RICHARD SPENCER.

[14] The beneficiaries are the children of the Deceased except for Richard Spencer, who is Dianna Spencer’s child, and the Deceased’s grandchild.

[15] Of significance, of the five beneficiaries named in Article 7, the Deceased only directed his attention to what would happen if Diana Spencer predeceased him. The Deceased’s Will is otherwise silent about what would happen if the other beneficiaries named in the Will predeceased him.

[16] All the beneficiaries who are named in Article 7 of the Deceased’s Will are still alive, except for Robert G. Kersey (“Robert”) and Paulette Gambrel (“Paulette”). Robert predeceased the Deceased, having died in 1992, and Paulette survived the Deceased, having died in 2013.

[17] The fact that Paulette is now deceased is of no consequence, as she survived the Deceased such that her interest in the Deceased’s estate vested in her long before her passing.

[18] However, what is not clear, and what has given rise to this Application, is how Robert’s share in the Deceased’s estate should be dealt with in light of the language contained in the Deceased’s Will, and the fact that Robert predeceased the Deceased.

[19] Robert is survived by his three adult children, LaTende Henry, Robert G. Kersey Jr., Keisha Kersey, and by his wife, Betty Kersey.

C. The Issues

[20] The following issues must be determined on this Application:

a. Is Article 7 of the Last Will and Testament of Floyd Kersey, dated February 5, 1983, subject to the anti-lapse provision in the SLRA?

b. Is the gift contained at Article 7 a “class gift”?

c. Does the gift to Robert contained in Article 7 of the Deceased Will go out on an intestacy in accordance with s. 47 of the SLRA?

[21] I have borrowed heavily from the applicant’s factum in my analysis of these issues, which is as follows.

D. Analysis

[22] Section 31 of the SLRA is commonly referred to as the “anti-lapse provision.” Its purpose is to prevent a gift, in this case to Robert, from lapsing. Section 31 reads as follows:

31 Except when a contrary intention appears by the will, where a devise or bequest is made to a child, grandchild, brother or sister of the testator who dies before the testator, either before or after the testator makes his or her will, and leaves a spouse or issue surviving the testator, the devise or bequest does not lapse but takes effect as if it had been made directly to the persons among whom and in the shares in which the estate of that person would have been divisible,

(a) if that person had died immediately after the death of the testator;

(b) if that person had died intestate;

(c) if that person had died without debts; and

(d) if section 45 had not been passed. R.S.O. 1990, c. S.26, s. 31.

[23] The general rule, which is that when a residual gift lapses it passes on an intestacy, is subject to two exceptions: (1) where the residual gift is a class gift; and (2) where a contrary intention appears in the Will: see Kapousouzian Estate v. Spiak, 2014 ONSC 2355, para 10.

[24] The first step is to determine what the Deceased’s intention was with respect to Article 7, including the phrase “share and share alike,” and why the Deceased specifically turned his attention to what would happen to Diana Spencer’s share if she predeceased him, but gave no consideration to what would happen if the other beneficiaries listed in Article 7 predeceased him.

[25] In Kapousouzian Estate, Wilton-Siegel J. nicely summarized the principles of construction of a Will as follows, at paras. 11–13:

11 In the interpretation of a will, as contemplated in Re Burke, [1960] O.R. 26 (C.A.) at p. 30, a court must ascertain the testator's subjective intention at the time of execution of the will:

Each Judge must "endeavour to place himself in the position of the testator at the time when the will 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."

12 In ascertaining such intention, a court should examine the circumstances surrounding the execution of the will as well as the words of the will itself.

13 In addition, courts generally proceed on the basis of the "golden rule" of construction of a will that presumes that a testator did not intend to die intestate. Accordingly, if a will is capable of two constructions, one of which disposes of the entire estate, the other of which results in a partial intestacy, a court will prefer the former. [Citations omitted].

[26] The applicant’s affidavit, sworn November 7, 2024, is the only evidence that I have with respect to determining the testator’s subjective intention at the time the Will was made. The applicant’s affidavit is, however, skeletal in terms of detailing the circumstances surrounding the execution of the Will and, therefore, it is the wording of the Will which, in my view, is critical to ascertaining such intention.

[27] The phrase “share and share alike,” has been interpreted in case law as words indicating a “per capita distribution” intention by the testator: see Boudreault (Estate) (Re), 2001 ABQB 196, para 29.

[28] The Court of Appeal in Dice v. Dice Estate, 2012 ONCA 468, para 12, defined per capita and per stirpes as follows:

12 A per stirpes distribution means that each branch of the family is entitled to only one share of the gift to be distributed among the members of the branch. Under a gift to issue alive at the testator's death per stirpes, this would mean the children of a deceased child of the testator would share the deceased child's share of the gift. This is in contrast to a per capita distribution under which each lineal descendant of the testator alive at the testator's death would receive one share of the gift.

[29] Unlike a per stirpes distribution, a per capita distribution means that Robert’s share is divided up equally between those beneficiaries listed in Article 7 who are still alive at the time of the Deceased’s death, and not among Robert’s issue.

[30] However, where the beneficiaries are all family members, as with the case at hand, the courts have determined that the testator’s intention must have been a per stirpes distribution. In Re Hall, Parker v. Knight, [1948] Ch. 437, the court stated as follows:

Through the authorities runs a reconciling principle that cases of capital distribution are cases of distribution between strangers or persons of no corresponding relationship; and that cases of stirpital distribution are cases of family distribution. [Citations omitted].

[31] Further, based on the wording of Article 7, it does not appear that residual gift of the Canadian estate amounts to a class gift. Prima facie, a class gift is a gift to a class of persons included and comprehended under some general description and bearing a certain relation to the testator or another person or united by some common ties: see Koleniec Estate (Re), paras 13–14.

[32] However, the naming of the members of the class, such as several persons designated by name in Article 7 of the Deceased’s Will, makes this prima facie a gift to specific individuals rather than the class as a whole, and therefore the gift is liable to lapse unless words are added implying a contrary intention: see Koleniec Estate (Re), at paras. 14–16.

[33] The issue then becomes, does a contrary intention appear in the Will to prevent a lapse/intestacy?

[34] The applicant submits that there are three possible outcomes in the case at bar:

a. The Deceased’s intention was that if a beneficiary predeceased him, their share would go to their issue on a “per stirpes” basis, or

b. The Deceased’s intention was the phrase “share and share alike” would result in “per capita” distribution as between those beneficiaries who were alive at the time of his death. As a result of Robert predeceasing the Deceased, Robert’s 1/5th interest is divided up equally among those beneficiaries listed in Article 7 of the Will who were alive at the time of the Deceased’s death, or

c. The phrase “share and share alike” does not amount to a contrary intention within the meaning of s. 31 of the SLRA, such that the anti-lapse provision applies. If this is the case, Robert’s 1/5th share in the estate passes to Robert’s wife and children in equal shares.

[35] The applicant argues that the first scenario, (a), is the correct interpretation of the Deceased’s Will. I agree.

[36] Although the phrase “share and share alike,” is used in Article 7, I find that, in the circumstances, this does not amount to a “contrary intention” which would prevent the gift from passing on to the beneficiaries’ issue in equal shares. The fact that the testator bequeathed his Canadian estate to specifically named family members strongly suggests a stirpital distribution, meaning that Robert’s issues are entitled to his share as per s. 47 of the SLRA. In further support of this, the Deceased specifically turned his mind in Article 7 and excluded Dianna’s Spencer’s son, the applicant Richard Spencer, from sharing a proportion of her share should she predecease him.

[37] Richard is the only grandchild listed in Article 7, as all other beneficiaries are the Deceased’s children. This suggests that the Deceased excluded Richard from sharing in Dianna’s 1/5 share because he was already slated to inherit his own 1/5 interest in the Canadian asset, and the Deceased did not want him to receive more than the other named beneficiaries should his mother predecease him. I also believe that the Deceased’s failure to specify what would happen to the shares of the other beneficiaries listed in Article 7 suggests that he had no need to do so because, as with Dianna, he intended the beneficiaries’ issue (except for Dianna’s son Richard) to inherit their parent’s share in the event they predeceased the Deceased. This interpretation is also consistent with the “golden rule” of construction of a Will, which presumes that the testator did not intend to die intestate.

E. Conclusion

[38] I find that the Deceased’s intention was that, if a beneficiary predeceased him, their share would go to their issue on a “per stirpes” basis.

[39] Accordingly, after considering all the evidence, there is an order to go in the form and content of the order draft in accordance with scenario (a).

F. Costs

[40] The applicant is requesting his full indemnity costs, payable out of the capital of the Deceased’s Estate at first instance.

[41] In the Court of Ontario Court of Appeal case, McDougald Estate v. Gooderham, 255 D.L.R. (4th) 435, Gillese J.A. referred to the importance of various public policy considerations when determining costs in estate matters. In this regard, she said the following at para. 78:

[I]t is important that courts give effect to valid wills that reflect the intention of competent testators. Where the difficulties or ambiguities that give rise to the litigation are caused, in whole or in part, by the testator, it seems appropriate that the testator, through his or her estate, bear the costs of their resolution. If there are reasonable grounds upon which to question the execution of the will or the testator's capacity in making the will, it is again in the public interest that such questions be resolved without cost to those questioning the will's validity.

[42] The difficulties with respect to interpreting the Will, which subsequently gave rise to this litigation, were clearly caused by the testator.

[43] I have reviewed counsel’s Bill of Costs and find the hourly rates and the number of hours spent by various lawyers, articling students, and law clerks on this case to be reasonable. I also note that the account from the American law firm involved in this matter comprised $15,899.35 of the total legal fees. After considering the factors outlined in r. 57.01 of the Rules, I believe that full indemnity costs in the amount of $43,070.09, all in, payable out of the capital of the Deceased’s Estate, are warranted for this important and relatively complicated case.

[44] The applicant is also requesting a blended costs award such that a portion of the costs incurred on this Application in respect of his motion to validate service be payable by the respondent, Chantu Johnson (“Chantu”), personally, and out of her share of the Deceased’s estate. She is the child of the late Paulette Gambrel and therefore has a proportionate interest in Paulette’s 1/5 interest in the Deceased’s estate.

[45] Chantu added costs to this Application by refusing to accept service, resulting in the filing of additional material to secure an order validating service, and an additional court appearance.

[46] There is a request for costs in the Notice of Application for any party who evades service and the order of Kalajdzic J., dated January 14, 2025, specifically contemplates the possibility of a costs award in respect for validation/substitutional service.

[47] I agree with the applicant and will exercise my discretion and order that a portion of the total costs of the Application be paid personally by Chantu, namely, the amount of $5,299.50, as set out in the draft order.

Brian D. Dubé
Released: May 2, 2025