Hahn v. Thompson, 2026 ONSC 2546

Hahn v. Thompson, 2026 ONSC 2546

CITATION: Hahn v. Thompson, 2026 ONSC 2546

COURT FILE NO.: CV-25-00000274-0000

DATE: 2026/04/29

ONTARIO

SUPERIOR COURT OF JUSTICE

IN THE ESTATE OF CLAUDE RICHARD HAHN, DECEASED

BETWEEN:

RICHARD PAUL HAHN AND CHRISTOPHER JOHN HAHN

Applicants

– and –

DAVID THOMPSON AS ESTATE TRUSTEE OF THE ESTATE OF PETER ALEXANDER HAHN, DECEASED, SHANE HAHN, AND BRANDON HAHN

Respondents

Benjamin Jefferies, Counsel for the Applicants

David Thompson, Counsel and Estate Trustee of the Estate of Peter Alexander Hahn, Deceased

The Respondent Shane Hahn is Self-Represented

Sharon Davis, Counsel for the Respondent Brandon Hahn

HEARD: July 21, 2025

THE HONONOURABLE MR. JUSTICE I.R. SMITH

REASONS FOR JUDGEMENT

Introduction

1The applicants are the estate trustees for the estate of Claude Hahn (“Claude”), who was their father. Under section 60 of the Trustee Act, R.S.O. 1990, c. T.23, they apply for “the opinion, advice or direction of the Court” respecting the effect of an anomaly in the drafting of Claude’s will on the management of the estate. The trustees say that the will contains an obvious drafting error which ought to be rectified by the Court. Claude’s grandson, Brandon Hahn (“Brandon”) disagrees. He acknowledges a drafting error but says that the meaning of the will can be discerned without correcting it.

Background

2In a will signed in 2016 (the “2016 will”), Claude left the residue of his estate in three equal parts to be paid to each of his three sons (the applicants and their brother Peter Hahn (“Peter”)) provided that such son was alive on the “division date.” Otherwise, the share in question would pass to that son’s children who were alive on the division date. The 2016 will included no definition of the term “division date.”

3Claude had an earlier will (the “2013 will”) which provided that the residue of his estate should pass in its entirety to his then wife, Rita Hahn (“Rita”). The 2013 will also referred to a division date but, unlike the 2016 will, it provided a definition of that term. Paragraphs 3.1(e) and (f) of the 2013 will (commonly referred to as survivorship clauses) provided as follows:

e. My Trustees shall pay or transfer to my spouse, RITA, all the residue of my estate provided that RITA survives me by thirty (30) days.

f. If RITA dies before me, or survives me but dies within thirty (30) days of my death, then on the death of the survivor of RITA and me (the "Division Date"), my Trustees shall divide the residue of my estate into three (3) equal shares give effect [sic] to the following distribution:

i. My trustees shall pay or transfer one (1) equal share to my son, RICHARD, if he is alive on the Division Date, but if RICHARD dies before the Division Date leaving issue alive on the Division Date, my trustees shall divide the share to which RICHARD would have been entitled equally among RICHARD’s issue in equal parts per stirpes;

ii. My trustees shall pay or transfer one (1) equal share to my son, PETER, if he is alive on the Division Date, but if PETER dies before the Division Date leaving issue alive on the Division Date, my trustees shall divide the share to which PETER would have been entitled equally among PETER’s issue in equal parts per stirpes; and

iii. My trustees shall pay or transfer one (1) equal share to my son, CHRISTOPHER, if he is alive on the Division Date, but if CHRISTOPHER dies before the Division Date leaving issue alive on the Division Date, my trustees shall divide the share to which CHRISTOPHER would have been entitled equally among CHRISTOPHER’s issue in equal parts per stirpes;

4Rita died in 2015 and, thereafter, Claude asked his solicitor to prepare a revised will that deleted reference to Rita and left the residue of his estate to his three sons. In the 2016 will, the bulk of the language is identical to the 2013 will but with all references to Rita having been removed, among other changes made necessary by her death. Paragraphs 3.1(e) and (f) of the 2013 will were replaced with paragraph 3.1(e), which opens as follows:

e. My trustees shall divide the residue of my estate into three (3) equal shares give effect [sic] to the following distribution: […]

5Following this preamble to paragraph 3.1(e) in the 2016 will, sub-paragraphs (i), (ii) and (iii) from paragraph 3.1(f) of the 2013 will are repeated without amendment, including their references to the division date.

6In a nutshell, then, the 2016 will deleted the definition of division date, but nevertheless continued to use that term.

7Claude died on October 20, 2021. Peter died 10 days later, on October 30, 2021.

8Peter had two sons, Shane Hahn (“Shane”) and Brandon. There is evidence that Peter had a poor relationship with Brandon since Peter’s divorce from Shane and Brandon’s mother, Debbie Hahn (“Debbie”). In his will, dated August 21, 2021, Peter left half of the residue of his estate to Shane and the other half to Brandon’s sons, Wyatt and Emmet, not to Brandon.

Positions of the parties

9The applicant trustees urge me to find that Claude intended that all references to “division date” ought to have been delated from the 2016 will and to rectify the will either by making those deletions or by defining the division date as the date of Claude’s death. In either case, upon Claude’s death, Peter’s one-third share ought to have been paid to Peter, who was then still alive, and then distributed on Peter’s death, pursuant to the terms of Peter’s will, to Shane, Wyatt and Emmett.

10Brandon argues that “division date” in the 2016 will ought to be interpreted such that it is given its “ordinary meaning consistent with common drafting practices requiring a beneficiary to survive the testator by 30 days.” If that submission is correct, as Peter did not survive Claude by 30 days, one third of the residue of Claude’s estate ought to have been paid to Shane and Brandon.

Discussion

The applicable rules of evidence

11The task of the court when asked to interpret a will is to divine the intention of the testator: Trezzi v Trezzi, 2019 ONCA 978, at para. 13. To achieve this task, (i) the will must be read as a whole and the words used considered in light of the surrounding circumstances; (ii) the words of the will must be given their ordinary meaning; and (iii) extrinsic evidence may be admissible to determine the testator’s intention: Barsoski Estate v. Wesley, 2022 ONCA 399, at para. 21.

12When the court considers the meaning of an ambiguous will in light of the surrounding circumstances, it is applying the “armchair rule”, which was described in Dice v. Dice, 2012 ONCA 468, as follows (at paras. 37 – 38):

Where the testator's intention cannot be ascertained from the plain meaning of the language that was used, the court may consider the surrounding circumstances known to the testator when he made his will -- the so-called “armchair rule”.

Under this rule, the court sits in the place of the testator, assumes the same knowledge the testator had of the extent of his assets, the size and makeup of his family, and his relationship to its members, so far as these things can be ascertained from the evidence presented. The purpose of this exercise is to put the court in, as close as possible to, the same position of the testator when [making] his last will and testament.

13Evidence of the surrounding circumstances is admissible if it provides indirect evidence of the testator’s intentions but inadmissible if it provides direct evidence of those intentions. The rationale for and content of these rules were described in Kaptyn v. Kaptyn, 2010 ONSC 4293, at paras. 35 – 38:

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.

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.

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.

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.

14Where, having considered the words of the will and the surrounding circumstances, the court is driven to the conclusion that the will contains an error or omission, the will may be corrected or “rectified.” In such situations, the evidence of the drafting solicitor is admissible: Re Robinson Estate, 2010 ONSC 3484, at paras. 24 – 27; aff’d 2011 ONCA 493, see paras. 24, 27.

The evidence presented by the parties

15The applicants rely on the affidavit of Robert McMaster, one of Claude’s solicitors, and on the affidavit of Richard Hahn (“Richard”), one of the two trustees. Brandon relies on his own affidavit.

16The applicants say that only the affidavit of Mr. McMaster is admissible as direct evidence of Claude’s intentions. Otherwise, it and the affidavits of Richard and Brandon are admissible only insofar as they supply indirect extrinsic evidence of those intentions as that category of evidence has been described above.

The affidavit of Mr. McMaster

17The complicating feature of Mr. McMaster’s evidence is that he was the drafter of the 2013 will, but not the drafter of the 2016 will. The latter will was drafted by one of Mr. McMaster’s former associates, who has left his firm and has not provided an affidavit. Neither is that solicitor’s file before me. Nevertheless, I am satisfied that I may consider Mr. McMaster’s evidence respecting the creation of the 2013 will. It provides evidence of Claude’s intentions respecting the division date and, as will be seen, in my view those intentions are relevant to his intentions respecting the 2016 will.

18Mr. McMaster is an experienced estates lawyer who says that he drafts more than 100 wills every year. He met with Claude and Rita on September 3, 2013, to get their instructions respecting the drafting of their respective wills. His notes show that they wished to leave the residues of their estates to each other and thereafter to their sons, or to their sons’ children should any of the sons predecease Claude and/or Rita.¹

19Mr. McMaster also says that it is his standard practice to recommend that any bequest to the surviving spouse be conditional on that spouse surviving the deceased by 30 days. Such a provision avoids the application of s. 55 of the Succession Law Reform Act, R.S.O. 1990, c. S.26 (“SLRA”), which applies when two or more individuals have died at the same time or in circumstances which make it difficult to determine in which order they died. The addition of this 30-day period also avoids the necessity of paying probate fees and other costs twice. Mr. McMaster says, however, that he typically does not recommend such a survivorship clause for bequests by parents to their children. Although he does not recall giving this advice to Claude, the 2013 will is consistent with it.

20After Rita died, Claude met with Mr. McMaster’s associate in 2016 for the preparation of a new will. Mr. McMaster did not participate in giving advice to Claude at that time, nor did he hear Claude’s instructions, and he has been unable to locate a file in his office for the creation of the 2016 will. Mr. McMaster says that a review of the 2016 will suggests that Claude simply wanted to remove reference to Rita while preserving the intention that the residue of his estate go to his sons. Mr. McMaster says that the drafting error in the 2016 – deleting the definition of “division date” but continuing to use that phrase – is obvious.

The affidavit of Richard Hahn

21Richard’s affidavit says that Peter was diagnosed with terminal cancer in 2021. He says that he discussed Claude’s will with Peter in the days after Claude died while Peter was in hospice. He told Peter that by the terms of the 2016 will, Peter stood to inherit one-third of Claude’s estate. Peter told Richard that he already knew that that was the case and said that he had asked Claude to amend his will so that Peter’s one-third share would be bequeathed directly to Shane, Wyatt and Emmet. Peter told Richard that Claude had declined to amend his will in this way and that he had told Peter that it was up to Peter to make whatever arrangements he wished with respect to his own estate (which would include one third of the residue of Claude’s estate). Accordingly, Peter prepared his August 2021 will in which he directed that half of the residue of his estate be paid to Shane and that the other half be divided equally between Wyatt and Emmet.

22Insofar as this evidence is said to be evidence of Claude’s understanding of the meaning of his 2016 will, it is inadmissible: Kaptyn, at paras. 35 – 37. Moreover, insofar as this evidence is said to be evidence relevant to the application of the armchair rule, it is inadmissible and/or unhelpful because it sheds no light on Claude’s intentions in 2016, at the time he signed the 2016 will. As noted in Dice, at para. 38, the “purpose” of the armchair rule “is to put the court in, as close as possible to, the same position of the testator when [making] his last will and testament” (emphasis added). See also Trezzi, at para. 13.

23In 2016, Claude did not know that Peter was going to have cancer in 2021, or that Peter was going to die at about the same time Claude died, or that Peter did not want Brandon to share in his estate. Indeed, on Richard’s evidence, Peter did not raise this issue with Claude until 2021. Peter’s intentions in 2021 are irrelevant to Claude’s intentions in 2016 and it is the latter which are in issue in this case.

The affidavit of Brandon Hahn

24Brandon’s affidavit is more argument than statement of facts. It is in my view largely irrelevant. It also does not provide evidence of Claude’s intentions at the time he signed his 2016 will. While one might infer from Brandon’s affidavit that Claude was aware of a rift between Peter and Brandon before either of Claude’s two wills were signed (since Peter’s divorce from Debbie is reported to have been in 2010), this affidavit provides no evidence that Claude knew before 2021 that Peter planned to leave half of his estate to Wyatt and Emett, and not to Brandon.

25The chief focus of Brandon’s affidavit is on the costs consequences of the decision I have to make² and on the efforts of the parties to settle this matter. Neither of these topics is relevant to Claude’s intentions or the definition of “division date.” I agree with Brandon, though, insofar as he asserts that there is no evidence that Claude intended to exclude Brandon for any inheritance.

Brandon’s preliminary objections

26Before I turn to the meaning to be given to the 2016 will, I am obliged to consider two arguments made by Brandon. First, he says that the trustees are failing to act with an even hand as between beneficiaries by taking a strong position on this application in favour of the interpretation of the will which favours what they perceive to be their deceased brother’s preferred outcome. While I agree that the applicants, as trustees, are obliged to act fairly in the management of an estate where there is more than one beneficiary, as there is here, I do not think that by bringing the matter before the court, asking for its advice and direction, and making submissions for the consideration of the court in a forum where all concerned have had the opportunity to make submissions to the court, the trustees could be said to be violating their duty to be even-handed. Indeed, by coming to court, they have ensured that the matter is dealt with even-handedly.

27Second, Brandon objects that what the applicants are really asking for is the rectification of the 2016 will – something they did not plead – not “the opinion, advice or direction of the Court” as asserted in the notice of application. In my view, if I come to the conclusion that the 2016 will is ambiguous, contains an obvious drafting error, and that Claude’s intentions could be carried out by correcting or “rectifying” that drafting error, then it would be within the authority of the court to so rectify the will. At a minimum, efficiency and the wise use of judicial resources would demand such an outcome.

28In Hunter Estate v. Holton (1992), 7 O.R. (3d) 372 (Ont. Ct. (Gen. Div.)), the court considered an application under s. 60 of the Trustee Act. There, the trustees sought the opinion of the court respecting proposed encroachments on the capital of the estate, which required an interpretation of the will. Steele J. wrote as follows (citations omitted; emphasis added):

The court will not normally grant approval or advice to trustees as to how they should exercise their power of discretion where such power is clear. […]. The present application is not a case concerning the exercise of a discretion, but requires the interpretation of the will to determine whether or not there is a power to do what is proposed.

I believe that the court should exercise its power in the present case. Section 60 of the Trustee Act authorizes an application for the opinion or direction of the court on any question respecting the management or administration of trust property. Rule 14.05(3)(a) allows an originating application to the court for such opinion. In a proper case, I do not think that the court should limit its opinion narrowly when all of the issues are before it. A trustee should not be required to face the risk of acting upon the limited opinion of the court and then face another possible action after it has acted on the same issues. I believe that s. 148 of the Courts of Justice Act, 1984 (now s. 138 of the 1990 Act) mandates the avoidance of multiplicity of proceedings and rule 1.04(1) requires the most expeditious and least expensive determination of proceedings on their merits.

29In the present case, all the issues are before me. It would make no sense to find that the will requires correction and then refrain from correcting it because the applicants ought to have pled rectification. That would leave the applicants in the position of having the opinion of the court but being unable to act on it without then bringing a rectification application. Obviously, using two applications to accomplish that which could be accomplished in one is not the most expeditious and least expensive determination of these proceedings on their merits. If I find that the will requires rectification to give effect to Claude’s intentions, I will order rectification.

Interpretation of the will

30The essence of Brandon’s position on the central issue before me is captured in his factum as follows (emphasis in the original):

Rita’s death in April of 2015 prompted the Deceased to update his Will in 2016. Presumably, the Deceased would have expected all references to Rita to be removed as there were no other changes to the Will. Logically, it follows that the Deceased likely associated the Division Date with its previous and ordinary meaning, being 30 days from his death as he would not have expected the Will to contain any language whatsoever pertaining to Rita. Without any reference to Rita in the final Will, it would be illogical to presume that the definition of Division Date would still be taken to mean the death of the survivor of Rita and the Deceased. If the Deceased had intended such meaning, he would not have taken efforts to remove all reference to Rita as the only amendment to his last Will.

31While this argument is not without some force, on balance, I am satisfied that I cannot accept it.

32There is limited evidence before me about Claude’s intentions in 2016 (other than the 2016 will itself), and of the circumstances surrounding Claude in 2016. To the extent that there is evidence of those circumstances, it establishes only that Rita had died. Otherwise, there appears to have been no change in Claude’s circumstances from 2013 to 2016 and no reason to believe that Claude’s intentions had changed except insofar as he apparently thought it prudent to revise his will given Rita’s death. As in 2013, he intended that his sons should inherit the residue of his estate after both he and Rita died. As in 2013, he intended that his grandchildren should be beneficiaries of his estate in the event that one or more of his sons predeceased him.

33If Claude had not replaced the 2013 will with the 2016 will, his estate would have been distributed in equal shares to his sons when he died, since Rita had already died. The then existing survivorship clauses would not have prevented such a distribution of Peter’s share. In other words, it would not have been necessary for Peter to survive Claude by 30 days, and Peter’s share would have been paid to Peter or to his estate, then distributed pursuant to the terms of Peter’s will.

34The 2016 deletion of para. 3.1(e) of the 2013 will and its references to Rita and to the definition of division date, it seems to me, supports the conclusion that Claude’s intention in this respect remained as it was in 2013: that the shares of the residue of his estate ought to pass to his sons unaffected by a survivorship clause. As noted above, Mr. McMaster deposes that he typically does not recommend a survivorship clause when parents make gifts to children.

35Although Mr. McMaster does not say why this is so, his advice makes sense. Spouses are usually of a similar age and, therefore, more likely to die at about the same time as each other, whereas children usually survive their parents by a substantial period. Spouses are often together and more likely therefore to die together in a single incident (which triggers s. 55 of the SLRA), whereas their adult children are likely to have embarked on their own separate lives. These are broad generalizations, of course, but they appear to apply to the facts as Claude knew them to be in 2013 and 2016. In this respect, I repeat the important point that there is no evidence that Claude knew of Peter’s terminal illness in 2016, since it was not diagnosed until 2021.

36Of course, however, Mr. McMaster was not the drafting solicitor of the 2016 will and there is no evidence of the advice given to Claude by Mr. McMaster’s then associate (or of Claude’s instructions to her), so I do not rely on Mr. McMaster’s evidence as evidence of Claude’s 2016 intentions. As I have observed, however, Mr. McMaster’s view that there is little need for a survivorship clause where bequests are made to children is a coherent one. And while the deletion of para. 3.1(e) – which suggests an intention to remove the survivorship provisions of the 2013 will – must be considered against the fact that sub-paragraphs 3.1(e)(i), (ii) and (iii) of the 2016 will retain vestiges of those provisions, I am satisfied that those vestiges were left in the 2016 will in error.

37Brandon says that the retained references to the “division date” signal Claude’s intention that he should be survived by 30 days in order for his sons to inherit from him, but there is no evidence of why Claude might have thought that this precaution was a salutary or prudent one insofar as his sons were concerned given that the 2013 will would have had no similar consequences and given that no circumstances had changed by 2016. There would have been little known risk of the need to avoid the provisions of the SLRA or of duplicated administration costs. These risks were not known until 2021.

38It is much more likely that Claude intended that his sons would inherit upon his death as they would have in 2013. In which case, the most likely interpretation of the 2016 will is that the references to division date in subparagraphs 3.1(i), (ii) and (iii) remain by virtue of mistake or oversight and should be disregarded or deleted. Less likely but also plausible is that Claude did not intend to change the definition of division date used in the 2013 will. In this latter case, the division date is the date of Claude’s death (since Rita had already died). In either case, Claude’s sons were entitled to inherit upon his death, they were not required to survive him by 30 days.

39The least likely option, in my view, is the interpretation of the 2016 will urged by Brandon, which would require me to conclude that Claude’s intentions changed significantly between 2013 (when it would not have been necessary for his sons to survive him by 30 days in order to inherit) and 2016 (when it would have been necessary). Nothing in the evidence supports the conclusion that there was such a significant change in intention. While knowledge of Peter’s illness might have constituted a circumstance that could justify the conclusion Brandon proposes, as I have said, that knowledge did not come to Claude until years after he signed his 2016 will.

Conclusion and Costs

40For all these reasons, I have concluded that Claude’s 2016 will ought to be rectified so that para. 3.1(ii) reads as follows:

a. My trustees shall pay or transfer one (1) equal share to my son, PETER, if he survives me, but if PETER dies before me leaving issue who survive me, my trustees shall divide the share to which PETER would have been entitled equally among PETER’s issue in equal parts per stirpes; and

41Although it may be unnecessary, subparagraphs (i) and (iii) should be similarly rectified.

42If the parties are unable to agree on costs, the applicants may serve and file written costs submissions within 10 days of the release of these reasons directed to my attention by email to my judicial assistant at mona.goodwin@ontario.ca and Kitchener.SCJJA@ontario.ca. The Estate of Peter Hahn may serve and file responding costs submissions within 7 days thereafter, and then Brandon Hahn may serve and file his costs submissions 7 days after that. The applicants’ reply, if any, shall be served and filed within 3 days thereafter.

I.R. Smith J.

Footnotes

1. 1Mr. McMaster’s handwritten notes read as follows on this point: “DISTRIBUTION: 1. EACH OTHER; 2. 3 BOYS EQUALLY; IF ANYONE OF SONS DIES, TO THAT CHILD’S ISSUE / STIRPES.”
2. 2This is also the focus of the affidavit filed by Mr. Thompson.