Court File and Parties
Oshawa Court File No.: CV-24-00002203-00ES
Date: 2026-02-10
Ontario Superior Court of Justice
Between:
WARREN KELLY HAYES WARD, in his capacity as ESTATE TRUSTEE of the ESTATE OF NORMAN KEITH WARD, Applicant — and — BRODIE ASHTON MCKINNON WARD, Respondent
Counsel: Phillipa Goddard, for the Applicant David Lobl and Nina Fainman-Adelman, for the Respondent
Heard: November 28, 2025, via videoconference
Reasons on Application
MCCARTHY J.
The Application
[1] Norman Keith Ward ("the testator") died on February 2, 2017, with a will dated December 19, 2012 ("the will").
[2] The testator was survived by his spouse Susan Elizabeth Ward ("Susan") who died on April 19, 2022.
[3] The Applicant, Warren Kelly Hayes Ward ("Kelly") is one of two surviving biological sons of the testator.
[4] Kelly was appointed estate trustee of the testator's estate on December 1, 2017.
[5] Brodie Ashton McKinnon Ward ("Brodie") is the other surviving biological son of the deceased and is the Respondent herein.
[6] The present application seeks the opinion, advice, and direction of the court with respect to the terms of the will relating to the house and lot owned by the testator located on part of Lot 16, Concession 9, in the Town of Pickering ("the property").
The Will
[7] The will gave the following instructions pertaining to the property:
4 (d) To allow my wife Susan Elizabeth Ward to have the use and occupation of my house and lot in the Town of Pickering, in the Regional Municipality of Durham, being part of Lot 16, Concession 9, Pickering, during the term of her natural life or until such time as she remarries or cohabitates and the said Susan Elizabeth Ward shall be responsible for payment of all taxes, insurance and proper minor maintenance of the said house and lot during her lifetime or until her remarriage or cohabitation. After the death, remarriage or cohabitation of the said Susan Elizabeth Ward or in the event she predeceases me, I direct that the said house and lot shall form part of the residue of my estate.
4(e) I further direct that if my present house and lot being part of Lot 16, Concession 9, Town of Pickering, is to be sold, I direct my said Trustee to give to my son Brodie Ashton McKinnon Ward the first opportunity to purchase the said house and lot at fair market value. In the event the said Brodie Ashton McKinnon Ward does not exercise his right to purchase the said property within thirty (30) days of receiving notice that the property is available for purchase, he shall be deemed to have waived his rights. I then direct my said Trustee to give to my son Warren Kelly Hayes Ward the second right to purchase the said house and lot at fair market value. In the event the said Warren Kelly Hayes Ward does not exercise his right to purchase the said property within thirty (30) days of receiving notice that the property is available for purchase, he shall be deemed to have waived his rights. I further direct that in the event neither the said Brodie Ashton McKinnon Ward nor the said Warren Kelly Hayes Ward exercise their right to purchase the said property then my Trustee shall give to my stepson Michael James Chester the right to purchase the said house and lot at fair market value. In the event the said Michael James Chester does not exercise his right to purchase the said property within thirty (30) days of receiving notice that the property is available for purchase, he shall be deemed to have waived his rights. In the event none of the said parties exercise their right to purchase the said property, my Trustee shall be entitled to sell the said property on the open market.
[8] The will effectively granted Susan a life interest in the property (or until she remarried or cohabited), after which it would form part of the residue of the testator's estate. Kelly and Brodie were each entitled to a 50% interest in that residue.
The Optionees
[9] The will then afforded Brodie the first opportunity to purchase the property at "fair market value". Should Brodie not, "exercise his right to purchase the said property within thirty (30) days of receiving notice that the property is available for purchase, he shall be deemed to have waived his rights".
[10] If Brodie waived his right to purchase, Kelly was then afforded the second right to purchase the property at fair market value. Failing that, the testator's stepson Michael would have the third option.
[11] Brodie, Kelly, and Michael are referred to collectively as "the optionees".
[12] The will went on to direct that the property was to be sold on the open market if all three of the optionees declined to exercise their successive rights to purchase the property.
Issues
[13] The dispute boils down to whether Brodie should be permitted to purchase the property from the estate and if so, at what price.
The Property and the By-Laws
[14] The property is comprised of two adjacent lots, referred to as Lot 6 ("the vacant lot") and Lot 7 ("the dwelling lot").
[15] A 1955 Township of Pickering by-law ("the deeming by-law") served to restrict the two lots on the property from being conveyed separately. The deeming by-law remained in place on the date that the testator executed the will. It continued to govern any potential conveyance throughout the lives of both the testator and Susan. Therefore, throughout this entire period, the property could only be legally conveyed as a single parcel.
[16] Beginning in 2019, and while acting in his capacity as estate trustee, Kelly took steps to have the property exempted from the deeming by-law. The enactment of a by-law passed on September 20, 2022 ("the exempting by-law"), now allows for the two lots on the property to be conveyed separately.
Notice and Exercise of Right
[17] On November 3, 2022, Kelly sent an email to Brodie in which he stated:
I am now giving you notice as per Page 3 Point (e) of the will of Keith Ward that you now have 30 days to exercise your rights to purchase the Property That is currently [held] in the Estate of Keith Ward.
[18] On December 2, 2022, Brodie replied to the email stating, in part:
I have full intention of buying the property spoken of in the Keith Ward Will […]
There are other issues needing resolution with the Estate and final purchase of the house and lot. This will be brought to your attention in the near future.
[19] There followed an interval of approximately ten months before this application was served on Brodie in October 2024. During that interval, the parties were unable to agree on the fair market value of the property or the basis for that valuation. The property continues to form part of the residue of the estate and is presently being administered and maintained by Kelly.
The Appraisal
[20] Kelly obtained an appraisal of the property dated January 17, 2024 ("Kelly's appraisal"). It bases the value of the property on the fact that the two lots can be conveyed separately. Kelly's appraisal establishes a fair market value for the property of $1.8 million, comprised of $1.3 million for the dwelling lot and $500,000 for the vacant lot.
The Applicant's Position
[21] Kelly argues that Brodie failed to exercise his right to purchase the property at fair market value. Brodie did not make any formal offer to purchase; he did not submit any agreement of purchase and sale; he did not submit a deposit; he did not offer or suggest a purchase price; he did not state any conditions; he did not propose a closing date; and he did not provide any evidence that he had the financial means to purchase the property or that he had been approved for a mortgage.
[22] Kelly relies on the case of The Estate of Ingrid Loveman, Deceased, 2016 ONSC 2687, a decision of Douglas J of this court. At para. 27 of that decision, the court held that "[a]cting upon a decision to purchase real property equates with executing an Agreement of Purchase and Sale or otherwise committing to enforceable terms by which the property is to be acquired." In accordance with the successive rights in the will, Kelly ought now to be permitted to purchase the property at the fair market value established in Kelly's appraisal.
[23] In the alternative, Kelly contends that should the court decide to afford Brodie an opportunity to purchase the property, it should be at fair market value as established in Kelly's appraisal.
The Respondent's Position
[24] Brodie contends that he did provide notice of his intention to purchase the property. He should be permitted to do so at the fair market value of the property as it was on the date the property became available for purchase, namely the date of Susan's death on April 19, 2022.
[25] Brodie has not filed any appraisals with the court. Instead, he suggests that the property should be valued as one parcel, not as two lots that can be separately conveyed.
The Law
[26] The general approach to the interpretation of wills was summarized by Brown J. in Kaptyn Estate, Re, 2010 ONSC 4293, 102 O.R. (3d) 1, at paras. 30-35:
When a court interprets a person's will, it seeks to determine the disposition of the property intended by the testator, in other words, to ascertain the testator's true intention.
In interpreting a will, a court seeks to ascertain, if possible, the testator's actual or subjective intent, as opposed to an objective intent presumed by law.
As I read the authorities, the prevailing approach to will interpretation requires a court to concentrate on the subjective meaning of the words used by a testator in his will. A court should consider the words used in the light of surrounding circumstances and by considering other admissible evidence, and give the words placed in a will the meaning intended by the particular testator.
As the Court of Appeal observed in Burke (Re) in applying the "armchair rule" a court should put itself in the place of the testator at the time he made his will and concentrate "on the circumstances which then existed, and which might reasonably be expected to influence the testator in a disposition of his property."
[27] The primary duty of an estate trustee is to faithfully carry out the testator's wishes and to administer the estate strictly in accordance with the terms of the will: see Eaman v. Banford, 2025 ONSC 4712, at para. 15.
[28] Estate trustees are bound by the "even-hand rule": they must act with impartiality and not favour one beneficiary over others. Estate trustees are afforded some discretion in the exercise of their powers, but that discretion must be exercised fairly: see In the Estate of Norma Baer, (deceased), 2014 ONSC 4468, at para. 18.
[29] The estate trustee's primary obligation is to carry out the wishes of the testator as set out in his will. And while he has an obligation to honor specific bequests and to treat beneficiaries even-handedly, an estate trustee must do so in accordance with the instructions in the will. Departure from the instructions and wording in the will should only be permitted upon receiving directions from court.
Analysis
(i) Did Brodie exercise his right to purchase the property?
[30] In my view, the deceased's use of the words "right", "first opportunity" and "waived his rights" in clause 4 (e) when read in conjunction with the entirety of the will, demonstrate a settled intention of the testator to afford the successive optionees a reasonable and relatively informal option of purchasing the property within a thirty-day window of "receiving notice" that the property was available for purchase.
[31] Brodie was afforded the first right among optionees. The will is completely silent on what steps needed to be taken for an optionee to exercise his rights to purchase.
[32] It is apparent from his instructions that the testator preferred that the property remain in his family: first, he granted a life interest to his spouse (subject to termination for potential events); second, the testator provided his two biological sons and his stepson with successive options to purchase the property.
[33] The testator's scheme does not amount to a sophisticated or complex commercial arrangement. It was meant to be straightforward: if one of his sons wanted to purchase the property, he could elect to do so but would be required to pay a fair price. Other than the order in which the rights could be exercised, there was no express preference or favoritism, and no advantage, discount or bargain available to any of the optionees.
[34] I am not prepared to read language into paragraph 4 of the will that would serve to impose requirements on an optionee to submit a formal offer to purchase, provide proof of financing or make a deposit.
[35] The will is replete with specific directions to the trustee on handling, retention, and disposition of investments, assets, real property, and personal property. There is no direction to an optionee exercising his right to purchase the property beyond him providing the requisite notice. The testator could have set out procedures, conditions, and requirements for an optionee to follow or fulfil after providing that notice. The testator could have set out a process for the estate trustee to follow once the notice was received. He did neither. I can only conclude that the testator's intention was to afford the optionees successive options to purchase the property through a relatively informal process but in a time sensitive manner and only at fair market value.
[36] I find that Brodie, by way of his email message of December 2, 2022, did comply with the basic requirements of paragraph 4 of the will by simply stating his intention to purchase the property. He did so within 30 days of receiving notice that the property was available for purchase. Brodie should therefore be afforded the opportunity to purchase the property at fair market value.
(ii) When was the property available for purchase?
[37] The will does not explicitly state when the property would be "available for purchase". The scheme in paragraph 4 required the life interest of Susan to terminate before the property could devolve into the residue of the estate. Only then could the property be sold. Only then could it be "available for purchase" by Brodie.
[38] Unfortunately, the will does not direct how, when, or if at all, the estate trustee would be compelled to sell the property, make it available for purchase or provide notice to an optionee. Since the estate trustee would have the sole legal authority to convey the property, it is logical to conclude that notice would have to come from him. But when? Immediately after Susan's death? Within a reasonable time thereafter? With conditions? With a fixed purchase price? And how would fair market value be determined? On what date? By what means?
[39] The will does not say.
[40] Although Susan passed on April 19, 2022, this did not mean that the property could have been immediately sold or became instantly available for purchase. Presumably Susan possessed personal belongings and papers which had to be inventoried and properly handled. What if the property needed repair? What if liens had been placed on the property? What if there was a secured line of credit that needed to be paid off? What if a tenant was occupying a portion of the premises? What if taxes were owing? There are many reasons why an estate trustee might not immediately sell a property.
[41] Paragraph 4 (e) must be read in conjunction with the entirety of the will, including paragraph 7. There, the testator confers specific powers on the trustee in relation to selling, disposing, and retention of assets. Moreover, the trustee is given specific powers to improve and manage the real property. At the same time, the testator conferred upon the trustee the ability to exercise his absolute discretion at any time.
[42] Specifically, under sub-paragraph 7(3), the trustee is empowered to, "…hold any of my assets or investments in the form in which they may be at the time of my death for any length of time …" [Emphasis added.]
[43] As for real property, under sub-paragraph 7(6) the trustee is empowered, "…to expend money out of the income or capital or my estate for repairs and improvements, and generally manage the property."
[44] By appointing Kelly as his estate trustee, the testator empowered him to administer the estate in accordance with the directions in the will but also within his absolute discretion. I do not interpret "assets" in para. 7(3) as excluding real property. I would also give an expansive meaning to the word "improvement" and "generally manage the property." While the wording does not specifically instruct the trustee to pursue an exempting by-law for the property, neither does it forbid this effort at improvement or this method of management of the property.
[45] The evidence establishes that Kelly exercised his absolute discretion to retain the property in the estate and to improve and manage that property by pursuing an exempting by-law which would allow it to be conveyed as two separate lots.
[46] I find that it was a reasonable exercise of the estate trustee's absolute discretion to manage and improve the property in this way. It was also a reasonable exercise of the estate trustee's absolute discretion to retain the property in the estate until he determined that it was appropriate to sell it at which time it became available for purchase by the optionees or on the open market.
[47] Kelly's management and improvement of the property increased its fair market value. The fact that part of this process unfolded between the time of Susan's death on April 19, 2022, and the time of receiving notice Brodie's intention to purchase the property on December 2, 2022, does not mean that Kelly ignored the directions of the testator, disregarded the trusts established in the will, improperly exercised his absolute discretion or failed to act even-handedly between beneficiaries.
[48] Brodie did not provide notice of his intention to exercise his right within 30 days of Susan's passing. Nor did he give that notice within 30 days of receiving Kelly's update on June 29, 2022, in which Kelly advised Brodie of the status of the exempting initiative. At that time, Kelly pointed out that the two lots would likely be capable of being separately conveyed and that fair market value would be based upon that new status of the property.
[49] I am not prepared to find any bad faith or breach of trustee duties on the part of Kelly in pursuing the exempting by-law or in electing not to provide notice to Brodie upon the death of Susan. Kelly had embarked on the by-law initiative a short time after his appointment, while the life interest of Susan was ongoing, and well before any date when the property could have been sold or could have been available for purchase by an optionee.
[50] Moreover, Kelly undertook the initiative in the best interests of the estate as a whole. By pursuing the initiative, he sought to improve the property by increasing its fair market value. Indeed, Kelly was, if not directly authorized and instructed to pursue the exemption, then certainly well within the bounds of the mandate in the will and acting within absolute discretion in doing so. Kelly cannot be criticized or faulted for seeking to enhance the value of an estate asset, the sale proceeds of which were intended for the residue of the estate to be shared equally by the residual beneficiaries, one of whom is Brodie.
(iii) What is the fair market value of the property?
[51] The will does not provide for how or when fair market value would be determined.
[52] That said, the will makes it abundantly clear that the purchase price for the property for any of the optionees, Brodie included, would be at fair market value. I would not interpret the language of the will as affording anything more to Brodie, or any of the other optionees, than the option to purchase the property at fair market value whenever and whatever that might be. Fair market value is the internal mechanism for determining the purchase price for all three successive optionees.
[53] Indeed, the scheme in the will guards against any advantage or windfall accruing to an optionee to the detriment of the estate because fair market value applies consistently to all optionees. And if none of the optionees exercised their respective rights, selling the property on the open market would presumably attract offers proximate to fair market value. Obtaining fair market value or a price on the open market was a central and consistent feature of the testator's intention for the property.
[54] I do not accept Brodie's position that fair market value should be determined from the date of Susan's death on April 19, 2022. The will does not give that direction. It would have been easy enough for the testator to declare that fair market value would be determined as of the date of the end of Susan's life interest or even on the date the property became available for purchase. He did not.
[55] In my view, a proper reading of the will is that fair market value could only be determined or agreed upon after the date when Brodie exercised his right to purchase the property – this was December 2, 2022. Only after receiving that notice from Brodie was the estate trustee compelled to establish fair market value with a view to complying with the terms of the trust and carrying out the conveyance. By that time, the exempting by-law had been passed, the property was capable of being conveyed as two separate lots and the fair market value would have obviously increased as a result.
[56] Affording the will the interpretation urged on the court by Brodie would frustrate the testator's intention for the property since it would see it conveyed by the estate at less than its actual fair market value.
[57] Moreover, an outcome by which Brodie acquired the property at a purchase price less than its fair market value when the optionee gave notice would deprive the estate of recovering fair market value proceeds for equal distribution to the residual beneficiaries. Assuming for a moment that an arm's length third-party purchaser would purchase the property for $500,000, two things would result from that transaction. One, the fair market value of the property would have been "fairly" established on the open market; and two, the proceeds of sale would make their way into the residue of the estate where they would be available for equal distribution to the residual beneficiaries. All other things being equal, this would result in each residual beneficiary receiving $250,000.
[58] On the contrary, if Brodie was permitted to purchase the property for $400,000 (i.e. less than the amount than the third-party purchaser mentioned above would have paid), three things would result: one, the property would not have been purchased at fair market value; two, there would be less proceeds of sale for the residual beneficiaries to split – $200,000 each; and three, Brodie would own a property worth $500,000. The result would be that Brodie would enjoy $100,000 of equity in the property in addition to the $200,000 he received from the residue of the estate. He would have received an unintended windfall. This unequal and inequitable result would run contrary to the true intention of the testator that the property be sold only at fair market value and that the residual beneficiaries be treated equally.
[59] While the scheme in the will reveals an intention on the part of the testator to keep the property in the family, it is equally clear that by setting the purchase price at fair market value, the testator's intention was not to benefit an optionee, including Brodie, to the detriment of the estate or its residual beneficiaries.
[60] I have no doubt that if Brodie chooses to waive his option to purchase the property at fair market value, thereby leaving him only as a residual beneficiary, he will stoutly oppose other optionees or arms-length third-party purchasers acquiring the property at anything less than fair market value.
[61] Indeed, had Kelly failed to pursue the exempting by-law, a proactive and responsible step which has enhanced the fair market value of the property, he might well face allegations that he breached his fiduciary duty to the residual beneficiaries to responsibly improve and manage the property.
[62] Finally, the built in fair market value mechanism in the will acts to protect Brodie as a residual beneficiary. If he waives his right to purchase the property, he can rest assured that Kelly would have to pay fair market value for the property or that the estate would recover fair market value on the open market.
The Appraisal
[63] I find that Kelly's appraisal is valid and reliable. Brodie does not dispute the value accorded to the property viewed as two lots capable of being conveyed separately. Rather, Brodie opposes this approach to fair market value and suggests that the fair market value should be based on the house and lot as one parcel at the time of Susan's death. It is Brodie's position that this is when Brodie's opportunity to purchase first arose.
[64] I find that Kelly's appraisal must prevail and be upheld by the court. The exempting by-law was passed in September 2022. The by-law effectively permits the separate conveyance of the two lots. The appraiser based his property value on the situation prevailing at the time that Brodie provided his notice of intention to purchase: the two lots on the property were and remain capable of being conveyed separately.
[65] There is no basis to question the opinion or qualifications of the certified appraisal. I find that Kelly's appraisal establishes the fair market value of the property for the purpose of paragraph 4(e) of the will.
Summary and Disposition
[66] For the foregoing reasons, I would order as follows:
i. Brodie shall have 30 days from today's date to offer to purchase the property for the fair market value established in Kelly's appraisal ($1.8 million). The offer shall be made in writing.
ii. Should Brodie fail to offer to purchase the property for the appraised value within 30 days of today's date, he shall be deemed to have waived his rights under the will.
iii. Upon the waiver of Brodie's rights as contemplated above, the estate trustee shall follow the process outlined in the will for the disposition of the property without regard to Brodie's option.
iv. The court is available to provide directions to the estate trustee for the sale of the property to Brodie upon return of this application.
v. The balance of the application is therefore adjourned sine die returnable before me on 7 days' notice by any party and to a date to fixed by the Trial Coordinator at Oshawa.
vi. The parties may address the issue of costs at the next return date of the application.
MCCARTHY J.
Released: February 10, 2026