2005 BCSC 1537 Jung, Re Estate of Horace Lee

Before: The Honourable Mr. Justice Burnyeat

Reasons for Judgment

Counsel for the Plaintiff, Estelle Lee Jung	R.D. Lee
Counsel for HSBC Trust Company (Canada), in its capacity as Administrator of the Estate of HORACE LEE, also known as HORACE PING TUNG LEE, and PING TUNG LEE,	E.J. Milton and K. Kuntz
Counsel for Joyce Mar and Carolyn Rantfors, in their capacity as co-executors of the Will of Edith Mar	J.L. Leathley, Q.C.
Date and Place of Trial:	August 22-24, and September 26, 2005 Vancouver, B.C.

[1] On March 27, 1987, this Court granted Horace Lee, also known as Horace Ping Tung Lee and Ping Tung Lee (“Horace”), Letters of Probate in common form to the Will dated November 15, 1977 (“1977 Will”) of Hubert Lee, also known as Hubert Bing Lee, Bing Lim Lee, and Hubert Bin Lee (“Hubert”).

[2] The Plaintiffs claim for the revocation of this March 27, 1987 grant of probate, a declaration against the force and validity of the 1977 Will, pronouncement for the force and validity in solemn form of law of what is referred to as the “true” last Will and Testament of Hubert which was executed on March 3, 1985 (“1985 Will”), a declaration that the Estate of Horace is holding the interests of the Plaintiffs in the Estate of Hubert in trust for them, and for an order for tracing of the funds to which the Plaintiffs would have been entitled had the 1985 Will of Hubert been probated rather than the 1977 Will.

BACKGROUND

[3] Horace and Hubert were two of eleven siblings. The claims raised in these two actions involve members of the extended Lee family. Of the siblings, only the Plaintiff, Estelle Lee Jung (“Estelle”) is alive. Judy Mar Hadeen, is the daughter of one of the siblings, Elsie Mar. As a Plaintiff, Ms. Hadeen is acting in her capacity as Executrix of the Last Will and Testament of her mother. Joanne Leo Naganawa is the daughter of one of the other siblings, Effie Leo. As a Plaintiff, Ms. Naganawa is acting in her capacity as Executrix of the Last Will and Testament of her mother.

[4] Hubert died on July 1, 1985. At the time of his death, Hubert had executed two Wills, the 1977 Will and the 1985 Will. Both Wills were on what might be referred to as “stationery store” forms.

THE DIFFERENCES BETWEEN THE TWO WILLS

[5] The 1977 Will appointed Horace as the Sole Executor and, under the 1977 Will, Hubert devised and bequeathed to his brother Horace “... my houses & property at 837 North Park & 841 North Park, Victoria, B.C.” and also provided: “All residue of my estate, real & personal, I give, devise and bequeath unto my brother Horace.” Richard Graham and Sharon Graham witnessed the 1977 Will on November 15, 1977.

[6] The 1985 Will appointed both Horace and Estelle as Executors and made the following bequests: (a) certain property in Victoria, 30% of the “cash and bonds” of Hubert and the residue of the estate of Hubert was left to Horace; (b) 35% of the “cash and bonds” to Estelle; and (c) 30% of the “cash and bonds” to his siblings, Elsie, Effie, Harold, Henry and, possibly, Edythe. All of the beneficiaries listed in the 1985 Will survived Hubert. All of the beneficiaries listed in the 1985 Will predeceased Horace, save for Edythe who survived Horace but passed away subsequently and for Estelle.

[7] In the 1985 Will, the address of Hubert and the date of “March 3, 1985” were written on to the Will and there is an agreement that these additions was written by Richard Graham who, along with Sharon Graham, witnessed the 1985 Will. In any event, I make that finding. Hubert did not sign the 1985 Will in the “usual” place but, rather, it was signed by Hubert within the attestation clause.

[8] The following words were written on the first page of the 1985 Will by Hubert: “My shares of Lee Bros. Holding Co. My property of 817 North Park St., Victoria, B.C. and 35% of cash & bonds to my brother Horace. 35% to my sister Estelle of cash & bonds. 35% divided evenly for my sisters Elsie, Edythe, Effie and my brothers Harold & Henry of cash & bonds.” The name “Edythe” has clearly been added after what is set out above was written by Hubert. In this litigation, the primary issue is when Hubert wrote those words on to the 1985 Will.

PROBATE OF THE 1977 WILL OF HUBERT IN ACTION NUMBER 181586 (VANCOUVER REGISTRY)

[9] The Assets, Liabilities and Distribution Statement filed in the Estate of Hubert indicates the following: (a) a house in Victoria having a value of $47,000; (b) $97,270.24 in chequing and savings accounts; (c) $490,000 in Term Deposits; (d) $17,863.00 in Canada Savings Bonds or Bare Bonds; (e) a Bayliner Motor Boat having a value of $800.00; (f) a Chevrolet Pick-Up truck having a value of $400.00; (g) a Volkswagen Station Wagon having a value of $100.00; (h) stocks having a market value of $15,577.70; and (i) shares in H. Lee Holding Ltd. having an unknown value.

[10] In his February 19, 1986 affidavit sworn before Mr. Craig Iwata, Barrister and Solicitor, Horace stated that he had made a diligent search and enquiry to ascertain the assets and liabilities of Hubert and also swore:

I will administer according to the law all of the estate which by law devolves to and vests in the personal representative of the deceased and I will exhibit a true and perfect inventory of the estate and render a just and true account thereof whenever required by law to do so.

[11] In those proceedings, Richard C. Graham swore an affidavit on March 6, 1987 indicating that he was one of the subscribing witnesses to the 1977 Will and stating:

THAT, Hubert Lee advised that the will was already written out in full and that we need only witness its execution.

THAT, although I did not read the will word for word, I scanned it briefly immediately prior to its execution by Hubert Lee.

THAT upon reviewing a copy of the [1977] will ... my recollection is that the words “all residue of my estate, real and personal, I give, devise and bequeath now to my brother Horace” were in the will at the time of the execution by Hubert Lee....

THAT I was a close personal friend of Hubert Lee and as such, he discussed the contents of his will with me.

THAT on numerous occasions, Hubert Lee expressed to me his intention to leave his entire estate to his brother Horace.

[12] In an affidavit also sworn September 14, 1990 before Mr. Iwata, Horace listed additional assets in the Estate of Hubert: “... pursuant to my obligation to disclose forthwith to the Court the existence of any asset or liability which was not disclosed to the Court in my affidavit of February 19, 1986.”

[13] When questions were raised as to whether the 1985 Will should have been probated rather than the 1977 Will or whether both the 1985 Will and the 1977 Will should have been submitted to the Court, Mr. and Ms. Graham swore further affidavits in Action no. 181586. In his affidavit sworn September 20, 2002, Mr. Graham stated that he was “a lifelong friend of Hubert”, how Hubert had become a close friend of him and his family and, with regard to the 1977 Will, that:

Prior to 1977, Hubert told me on several different occasions that he intended to leave everything he owned to his brother Horace, and in 1977 he executed a will which did just that. My wife and I were witnesses to that will. I remember at the time I witnessed the 1977 Will I remarked to Hubert that because there were two different types of ink in it that it might cause problems later but Hubert went ahead and signed anyways.

Some time after the 1977 Will had been done, Hubert sold his three Victoria properties and wanted to buy his dad’s house at 817 North Park. Hubert told me that he and his brother Horace had a disagreement with respect to sale of the house to Hubert. His brother’s position offended Hubert and he began to rethink whether he should leave his entire estate to Horace as set out in his 1977 Will.

He mentioned that Estelle was very good to him and Hubert would always stay with her and her family when he was in Vancouver, and that he would like to give her a larger portion of his estate.

In early 1985, Hubert went into hospital for a brief period of time to have some tests done. I visited Hubert almost every night when he was in hospital.

On one evening in early March, Hubert called me at home to ask me to bring my wife Sharon along to the hospital the next day so that we could be the witnesses for his new will.

The next day I went to the hospital with Sharon to visit Hubert. He was alert, his usual witty self, and to the best of my knowledge not sedated in any way at that time.

Hubert gave me the will to look at. It had been completely filled out except for the signatures, and I saw that there was an insertion on the first page with respect to his sister Edythe. I asked Hubert about it and he said that he had initially forgotten to include her, but when he reviewed the will he saw his error and inserted her name.

I commented to him that the insertion might cause problems with the will, because my understanding was that any changes to a will might be a problem, but he felt confident it would be all right to sign it as it was.

We also briefly discussed him leaving 35% of his cash and bonds to Estelle, and he said that she had always taken such good care of him whenever he visited that he wanted to leave her more than his other siblings.

The terms of the will were certainly consistent with the sentiments he had expressed to me over the few years prior to this occasion.

After our brief discussion, Hubert signed the Will on the second page at the end on the left hand side, in the presence of both my wife Sharon and myself.

My wife and I then signed in the place for the attesting witnesses. I cannot recall if I or my wife signed first, but I do know we both put our signatures on the will in Hubert’s presence....

Hubert then took the 1985 Will and put it away, and we had a nice visit with him afterwards for an hour or so. I do not believe I saw the 1985 Will again until a copy of it was sent to me sometime after his death, by a lawyer, in 1987.

Around that time the lawyer (whose name I forget) asked me to swear an affidavit with respect to the 1977 Will, and I did so....

I mentioned the 1985 Will to the lawyer, but he led me to believe that the second one was not valid. I cannot recall why he said it was not valid, but I did not question it at the time for, as I had warned Hubert, I though the insertion of Edythe’s name would cause a problem.

To the best of my knowledge, Hubert did not make another will after the 1985 Will. Given our close relationship, I expect he would have asked Sharon and I to witness it, or at least told me if he had done a new one or destroyed the 1985 Will.

[14] In her affidavit sworn September 20, 2002, Sharon Graham stated that she saw Hubert quite frequently “as we would have him over for dinner with us and our children”, that she was asked by her husband to accompany him to visit Hubert who was in hospital “so that we could witness Hubert’s Will”, and that when they reached the hospital:

The next day we arrived at Hubert’s room in the hospital. I had no question in my mind as to his mental facilities; he was alert, and to the best of my knowledge not sedated in any way.

Hubert gave his will to Richard and I to look at, and Richard and Hubert had a discussion about an insertion on the first page with respect to Hubert’s sister Edythe. Hubert said that the initial omission was an oversight, and that on reviewing the will he realized the mistake and corrected it.

There was further discussion about one or two other issues, then Hubert signed the will on the second page on the left hand side, in the presence of both my husband and I.

My husband and I then signed in the place for attesting witnesses, in Hubert’s presence. We stayed for another hour or so after that to chat with him and then went home.

PRESENT PROCEEDINGS

[15] In these proceedings, Mr. Iwata stated in his May 9, 2003 Affidavit that Horace came to see him about the Estate of Hubert, he knew Horace because Horace was a good friend of his father, he was asked to act as the solicitor of Horace to probate the 1977 Will and Probate was applied for and granted on March 27, 1987. Mr. Iwata then outlined when he became aware of the 1985 Will:

In 2002, I became aware that Hubert Lee had made a later Will....

I have searched and made efforts to locate the file for Hubert Lee’s estate, including contacting the firm I was working with in 1987, but I have not been able to find it. It has most likely been destroyed. I do not recall Horace showing me the 1985 Will when he came in to see me in 1987.

[16] Pursuant to Rule 40(44) of the Rules of Court, I made an Order that Mr. Iwata could provide his evidence at trial by affidavit. In his September 26, 2005 Affidavit, Mr. Iwata states that he does not specifically recall when he was initially contacted by Horace: “I do not think that Horace or anyone else told me of the 1985 Will when I obtained the grant of probate for the 1977 Will, but I cannot say that with certainty, as my recollection of this matter is limited”. Mr. Iwata also states that he believes that he prepared the affidavit which Mr. Graham swore on March 6, 1987 with respect to the 1977 Will “…as it is highly unlikely that anyone else at ... where I worked at the time, would have dealt with this file.”, “I have no recollection of speaking with Richard Graham, although it is likely that I did so in preparing his affidavit.”, but that his review of the probate file relating to the 1977 Will does not assist his recollections and “…in fact, confirms that I do not have full recall of events; for example, I did not remember that I had to speak to this matter in obtaining the grant of probate.” Mr. Iwata confirmed that he no longer has his file relating to the matter and that he is advised that none of the three firms he was with since 1986 have any file material relating to this matter. Before Mr. Iwata was retained by Horace to probate the estate of Hubert, Horace retained the services of a different law firm.

[17] While the events leading up to the probate of the 1977 Will are in dispute, the parties can agree and I find that: (a) Horace initially retained the law firm of Joe, Chong, Chen & Barbour to assist him in probating the Estate of Hubert; (b) at some point in 1986 or 1987, the probate file was removed by Horace from that law firm and was forwarded to Mr. Iwata; (c) all file material in the possession of the law firm of Joe, Chong, Chen & Barbour relating to the Estate of Hubert was either returned to Horace or was destroyed prior to the commencement of these proceedings; (d) the 1977 Will of Hubert was submitted for probate on February 16, 1987; (e) a Grant of Letters Probate for the 1977 Will was issued on March 27, 1987; (f) the 1985 Will was never submitted for Probate; (g) Horace received the entirety of the Estate of Hubert pursuant to the terms of the 1977 Will; and (h) there are sufficient funds remaining in the Estate of Hubert to represent what Hubert inherited from Horace as a result of the probate of 1977 Will and the dispositions under the 1977 Will.

TESTIMONY OF OTHER WITNESSES AT TRIAL

[18] Estelle testified that she was very close to both Horace and Hubert, she acted as their housekeeper and lived in the same home for five years, and “acted as mother”. When her mother became ill with cancer, she moved from her home in Vancouver to the family home in Victoria and both Horace and Hubert were still at that home. While at the family home, she washed their clothes and paid bills on their behalf. After their mother died, both brothers moved to Vancouver. After their father died, Estelle testified that she saw both brothers almost every day prior to Hubert moving to Victoria. After he did, Estelle stated that Hubert came over for many weekends and other special occasions. She described the culture in a “Chinese family” as: “only spoke when spoken to – I the youngest – never questioned my father or brothers – family tree was the boys as the girls when they married would belong to the family of their husbands”. She described Horace as “lackadaisical” and that Hubert “wanted to get jobs done right away”.

[19] She quotes Horace as saying that, when Hubert died, he “had a will” and “you were in it”. She states that Horace gave her a copy of the 1985 Will. She quotes him as saying that we would have to see a lawyer, that he suggested David Chong who “knew my brothers well” and “was a close friend of Hubert”, and that she and Horace went to see Mr. Chong about the estate of Hubert. I record her as quoting Mr. Chong as saying at the meeting: “he said problems to get probated as Hubert signed in wrong place” and that there was problem associated with the addition of “Edythe” on the Will. She quotes Mr. Chong as suggesting that, because there was the 1977 Will, she and Horace could “probate it then disburse in accordance with the 1985 Will”. She does not recall seeing the 1977 Will at the meeting. When asked whether she felt comfortable with that arrangement, she stated: “No real feelings with what happening. Chinese custom. As he was the older brother, he knows what to do – we left it to him.”

[20] She describes a discussion after she and Horace left the office of Mr. Chong and quotes Horace saying about the 1985 Will: “Can rip it up – it’s not valid”. Despite that advice, Estelle states that she put the 1985 Will in her safety deposit box because “knowing my brother – he might need a copy” to distribute the assets in accordance with the 1985 Will. She reports stating to her daughter: “If anything happened to me show it to Uncle Horace”. She states that she was never told about the Probate of the 1977 Will and that she only learned about it when her lawyer showed her the documents after Horace died.

[21] As to why she did not bring up the 1985 Will with Horace prior to his death, I record her as stating: “Never questioned him. Chinese custom. Not approach me as I did not raise it.” “When time comes, if he wanted to give me money he would”. “Saw a lawyer. Told me not valid so I never dared approach him.” Estelle confirmed that she did not bring it up with any of her siblings: “Why bring up with them and cause trouble?” “They on the 1985 Will – would get money when they got it”.

[22] Under cross-examination, Estelle agreed that she had no recollection of the office location of Mr. Chong although she knew “We had to go upstairs”. She was adamant it was with Mr. Chong and not her brother Horace who told her about the problems with the 1985 Will. She said that the only way that she knew the Will was not valid was as a result of her meeting with Mr. Chong in 1985. She quotes Horace as saying that Mr. Chong wanted both of them there to discuss the 1985 Will.

[23] Estelle was asked whether it was correct that Horace was “just voluntarily giving up assets he was entitled to take” and Estelle answered “correct”. As to why she had not told her siblings, Estelle stated: “I didn’t want to upset sisters. I had no idea what he left me. My father told me family who needs a lawyer is not good.”

[24] She described the meeting with Mr. Chong as taking 20 to 30 minutes and being in his private office with his partner Mr. Barbour “I think”. She stated that she only became aware of the 1977 Will “at the meeting”. She also stated that one of the other reasons why she did not tear up the 1985 Will was that she thought that she would die before Horace. She indicated that she thought that she had told her daughter Kathy about the second will in December, 1985 “thought good idea as he not remember well – he lackadaisical”. As to why she had not told her siblings and in particular Edythe, she stated: “Because at that time it was invalid”.

[25] Mr. Chong testified that he had not met Estelle until after the death of Horace, he requested Mr. Barbour of his office to handle the estate of Hubert and deal with Horace, he thinks that he received the original of the 1985 Will from Horace, he could not recall ever discussing the 1985 Will or the estate at his office, he saw that there were certain problems with the 1985 Will including the insertion of the word “Edythe” and whether it was properly signed, he saw Horace virtually every day but had limited conversations with him regarding the estate of Hubert, he was advised by Mr. Barbour that, when Mr. Barbour contacted Mr. Graham, Mr. Graham had said that when they signed the Will as a witness the “whole thing was blank”, he asked Mr. Barbour what could be done in view of that advice, he believed that he spoke to Horace after Mr. Barbour spoke to him, and he advises that Horace said that the estate was taking a long time and would he mind if he took the estate of Hubert to another lawyer. Mr. Chong stated that he tried to explain to Horace what Mr. Barbour had been doing and the difficulties associated with what he had been doing but that, when he saw that the attitude of Horace would not change, I record Mr. Chong as stating: “I gave up. I told him we’d send the stuff back.”

[26] Mr. Chong stated that he knew of the existence of the 1977 Will but he was not sure whether he saw it at the time his firm was dealing with Horace. He did not give the advice or recommend that the 1977 Will could be probated but the estate distributed pursuant to the provisions of the 1985 Will. He stated that he did not know whether Mr. Barbour had given such advice.

[27] He also stated that he had a meeting with Estelle in March of 2002 and that Estelle had stated Horace was to give her a portion of the estate of Hubert, she had not received a portion, and she should have received a portion if Horace had followed the advice received from Mr. Chong that they could probate the 1977 Will but distribute pursuant to the 1985 Will. Mr. Chong stated that he thought it might have been at a meeting he had forgotten about but, after he had searched his memory, he came to the realization that he could not have given such advice because he had not met Estelle prior to the death of Horace. Under cross-examination, he confirmed that he never denied to Estelle that such a meeting had taken place. However, he also stated that he thought it unlikely that he had forgotten about the meeting and, in this regard, I record him as stating: “I doubt it – too significant to forget.” “I believe I have a good memory.” “If it happened I believe I’d remember it.”

[28] Norman Barbour testified that the file had been opened by Mr. Chong on July 3, 1985, he was assigned the file in order to arrange the probate of the 1985 Will, it was his file but he discussed the file with Mr. Chong from time to time, he had no recollection of ever meeting with Estelle in respect of the estate of Hubert, he had left the matter “too long”, Mr. Chong stopped by his office from time to time to find out what was happening on the file, and he recognized that he needed to contact the witnesses so he recalls sending a letter to Mr. and Ms. Graham with a copy of the 1985 Will and Mr. Graham phoning him back.

[29] Regarding the telephone conversation that he had with Mr. Graham, I record Mr. Barbour as stating that Mr. Graham stated that it was a “definite no” when asked whether the name “Edythe” was in the 1985 Will when he signed it and that Mr. Graham had stated that “There was nothing there.” He stated that Mr. Graham explained that they had visited the hospital and that Hubert had stated: “I haven’t made up my mind.” “I will fill that in later.” and that the “fields were blank”. However, Mr. Graham did confirm that he, Hubert and Ms. Graham were all present when the 1985 Will was signed and they witnessed it. Mr. Barbour testified that he made notes in his file regarding the conversation and: “I had no doubts what he told me was forthright.” He stated that he remembered it well as it was “such a lightening bolt.” “It was such a conundrum and it had puzzled me since.” After the conversation with Mr. Graham, Mr. Barbour states that he told Mr. Chong about the conversation and that Mr. Chong asked whether the 1985 Will might create an intestacy.

[30] Mr. Barbour stated that, after a later discussion with Mr. Chong, they agreed that both the 1977 Will and the 1985 Will should be presented to Court and that he advised Horace to that affect. He stated that Horace expressed concern about the garage that he and Hubert ran together. Mr. Barbour states that he raised with Horace the possibility that the assets could be distributed as if under the 1985 Will even though “it is not legally effective” but that Horace stated that it would not be possible “as some nephews in California would demand every cent they could get.” He quotes Horace as stating “Why not just present the 1977 Will” and he states that he replied: “I said not ethical – I remember feeling quite uncomfortable with that suggestion.” He stated that their meeting concluded on the basis that Horace would “think about it”. Mr. Barbour stated that he was later advised by Mr. Chong that it was “no longer a problem” and that Horace was taking his file “elsewhere”.

[31] Under cross-examination, Mr. Barbour agreed that he had no ability to refresh his memory as his file and any notes were no longer available. When questioned whether it was possible that his discussion with Mr. Graham had taken place with both the 1977 Will and the 1985 Will having been sent to Mr. Graham, Mr. Barbour stated that the 1977 Will would not have been sent to Mr. Graham as there was no concern about it and it was a “interesting artefact only”. Mr. Barbour was quite certain that Mr. Graham had the 1985 Will before him when they spoke. He was also of the belief that Mr. Graham would not have been confused about what he was being asked. I record Mr. Barbour as stating in this regard: “I was used to dealing with people who had language difficulty. My practice was to use simple language. So I would explain what I was talking about.” He stated that “I doubt it very much” that there was a possible misunderstanding about what Mr. Graham was being told and what he said. I also record him as saying: “I questioned him repeatedly. He always expressed in very firm terms and quite confidently.”

[32] Mr. Barbour had no real explanation as to why, if he was instructed to probate the 1985 Will, he had not met with both executors: “Not think about meeting with Estelle” “Horace had given instructions to David Chong so Horace would apply for probate”.

[33] At Trial, Mr. Graham repeated much of what was set out in his September 20, 2002 Affidavit. He stated that Hubert was private and did not talk about his siblings very much. He quoted Hubert as saying that Estelle was very good to him and that he loved big family dinners and always took “large loads of things with him” when he visited her. He quotes him as saying that he was quite fond of Estelle, always stayed at her place, relied on her to get family dinners together, and was the only person he spoke about in the family. He described Hubert as being “like a father to me”. “A wonderful person”. He stated that they talked a bit about wills and that Hubert expressed the view that he wanted his possessions “pooled in the family – always available so could always be there for the family members – always available so funds for schooling, etc. always there.” Mr. Graham confirmed that he witnessed the 1977 Will and expressed doubts about it because it was in two colours of ink. When asked whether there was anything that would change Hubert’s mind about his beneficiaries, he quoted Hubert as saying that he wanted to buy their father’s house, but that Horace would not give him good deal on the house even though he had worked on it and on the Victoria family store.

[34] Regarding the 1985 Will, Mr. Graham stated that Hubert had phoned him and asked him to bring his wife as “I wanted to update my Will”. He then gave the following evidence as I record it: “I saw it was filled out. I scanned it only this little mark with Edythe above it” “I concerned about it” It will not fly. He said it is alright. “I just forgot that particular sister so I just put it in and that is what he wanted” “I think he wanted to do more for her [Estelle] “She stepped up to the plate more”. “He said I’ve left Estelle a little more in this will”. I record him as stating: “He signed first. I signed first and then Sharon signed. We were all in the room together”. “He put it in an envelope – I never saw it again”. Mr. Graham was adamant that everything was filled in at the time. Regarding the date and the address, Mr. Graham confirmed saying to Horace “you have to fill that in and he said go ahead.” Accordingly, Mr. Graham then wrote the date and the address of Hubert on the 1985 Will.

[35] Regarding his September 20, 2002 affidavit, he stated that a lawyer sent him the affidavit, that he can’t remember his name, that he spoke to him on the phone, he said that there was a will after the 1977 one but that the lawyer said it was not valid, but did not discuss why it was not valid and that “I just assumed they were going with it”.

[36] Under cross-examination, Mr. Graham could not recall if it was Mr. Iwata who had phoned him but that “It doesn’t ring a bell”. “I think it was a he”. He states that he had the 1985 Will and that whoever he spoke to knew about it and told him it was “invalid”.

[37] Regarding the discussion alleged by Mr. Barbour, he denied telling Mr. Barbour that the addition relating to Edythe was not there when he signed it. He also stated: “I’ve gone over this in my mind a 100 times – both of us there – I pointed out the “carot” to my wife and to Hubert so it had to be there”. To the suggestion that he told Mr. Barbour that there was nothing there and that it was blank, he stated: “No memory of that. Only saw it in the hospital room”. “Carot is so clear in my mind”.

THE DEATH OF HORACE

[38] Horace died intestate on December 31, 2001. HSBC Trust Company (Canada) (“HSBC”) was appointed as the Administrator of the Estate of Horace on July 3, 2003. The gross value of the Estate of Horace at the date of his death was in excess of $2,000,000.00. As at June 9, 2005, the following assets continue to be held by HSBC for the Estate of Horace: (a) cash and Treasury Bills totalling approximately $1,470,000; (b) a house in Vancouver which was appraised at $450,000; and (c) proceeds from the pending winding-up of H. Lee Holding Ltd. which is estimated to be in the neighbourhood of $728,000 after all taxes have been paid.

[39] Since Horace died intestate, his Estate will be divided on the basis of one-ninth each to Estelle as his surviving sibling and to either the Estates of the other siblings of Horace or to the children of the other siblings of Horace.

IS THE ACTION OF ESTELLE STATUTE BARRED?

[40] Dealing with the applicable provisions of the Limitation Act, R.S.B.C. 1996, c. 266, s. 3(3) sets the limitation period for actions to recover a share of an estate at ten years and s. 3(6) establishes a limitation period of six years for actions to recover property wrongfully taken or detained or for damages for conversion or detention of goods. If a claim is not specifically provided for within these limitation provisions, that claim may not be brought after the expiration of six years after the date on which the right to do so arose: s. 3(5).

[41] Estelle Jung testified that, shortly after Hubert died, she discussed the estate of Hubert and his two wills with her brother Horace. I am satisfied that this evidence constitutes an admission by Ms. Jung that she knew of the existence of both the 1977 Will and the 1985 Will shortly after the death of Hubert. I am also satisfied that, the fact that Ms. Jung did not receive the expected share from the Estate of Hubert after the grant of probate of the 1977 Will on March 1987, put Ms. Jung on notice that she should then act to secure what she believed to be her share in the Estate of Hubert. I am satisfied that the grant of probate gave Ms. Jung until sometime during 1997 to commence an action claiming her share of the Estate of Hubert or the recovery of the property of the Estate of Hubert from Horace. Alternatively, I find that, if her claim cannot be characterized as a claim pursuant to s. 3(3) of the Limitation Act, the claim of Ms. Jung would fall under either s. 3(6) or s. 3(5) of the Limitation Act so that her claim would be barred after 1993. Accordingly, I hold that the claim of Estelle Lee Jung commenced in Action No. S030897 is statute barred and must be dismissed.

[42] I do not reach a similar conclusion regarding Action No. S050247 of Ms. Hadeen and Ms. Naganawa. I find that there was no evidence that the other named beneficiaries under the 1985 Will or their heirs and successors had any information about the existence of the 1985 Will or the failure of Horace to probate it. Pursuant to ss. 6(1) and 6(4) of the Limitation Act, I am satisfied that these claims may proceed based on the postponement of the limitation period.

[43] I find that Action No. S050247 was commenced within six years after those beneficiaries became fully aware of the “… fraud, fraudulent breach of trust, conversion or other act of the Trustee on which the action is based” (pursuant to s. 6(1)(b) of the Limitation Act). In this regard, I am satisfied that the evidence presented on behalf of the Trustee of the Estate of Horace has not met the burden of proving that the time had begun to run so as to bar the action pursuant to s. 6(3)(e) of the Limitation Act. I also find that the running of the limitation period was postponed because material facts relating to the cause of action had been wilfully concealed by Horace.

WAS THE 1985 WILL PROPERLY EXECUTED BY HUBERT?

[44] In order to be validly executed, the 1985 Will had to be properly witnessed in accordance with s. 4 of the Wills Act and properly executed pursuant to s. 6 of the Wills Act:

[45] The signature of Hubert does not appear in the usual place but, rather, in the attestation clause in the area preserved for the identification of the testator. I am satisfied that s. 6(2)(c) of the Wills Act specifically provides for the execution which was present in the 1985 Will:

A will is not rendered invalid in any of the following circumstances…(c) the signature is placed among the words of a testimonium clause or of an attestation clause or follows or is after or under an attestation clause either with or without a blank space intervening, or follows or is after or under or beside the name of a subscribing witness.

[46] When probating wills, the Court should proceed on the assumption that a Will was properly executed. However, this is a rebutable presumption that may be defeated by clear, positive and reliable evidence showing some defect in execution: Re Laxer (1963), 37 D.L.R. (2d) 192 (Ont. C.A.) and Beniston Estate v. Shepherd, [1996] B.C.J. No. 2480 (B.C.S.C.). While the 1985 Will would not appear on its face to be properly executed, I am satisfied that I can reach the conclusion that it was. In this regard, I rely on the following decisions:

(a) Cook v. Nova Scotia, Province of (1982), 53 N.S.R. (2d) 87 (T.D.) at paras. 37-40;

(b) Re Laxer, supra.

[47] In Cook, the testatrix failed to sign the will in the proper place but inserted her name in the attestation clause. Despite that problem, Hallett J. held that the fact that the name only appeared in the attestation clause was not fatal to the validity of the will. I am satisfied that the signature of Hubert was added to give effect to the 1985 Will. I accept the evidence of Mr. and Ms. Graham who both testified that they witnessed Hubert signing the 1985 Will.

[48] I also adopt the following statement of Schroeder J.A. in Re Laxer, supra:

Where the circumstances point to the fact that a testator intended a document to be his will and thought that he was complying with the statutory requirements as to execution the Court will presume that everything was right, so that where there is any doubt about the recollection of the attesting witnesses, or where for any reason it cannot be relied upon, and where upon the evidence viewed in its entirety it can fairly be concluded that the will ought to be held good, the Court may say that it is satisfied that the will was duly and properly executed.

The authorities supporting the application of the presumption favouring due execution of a testamentary instrument lay down a very sound and salutary principle, since a contrary rule would make the rights of devisees and legatees depend not only upon the honesty, but also upon the frail and slippery memory of witnesses. No man could be sure of dying testate, since the dishonesty or forgetfulness of a witness could frustrate all his precautions to comply with the requirements of the law. (at p. 206)

[49] I am also satisfied that the execution of the 1985 Will was in accordance with
s. 4 of the Wills Act in that I find that the 1985 Will was signed by Hubert in the presence of Mr. and Ms. Graham and that Mr. and Ms. Graham then added their signatures as witnesses in the presence of Hubert. Both Mr. and Ms. Graham have a distinct recollection of the order of the signatures: Hubert signed first, then Mr. Graham, and then Ms. Graham. Both of them testified that all three were present at the time. I accept their evidence in these regards.

[50] In the circumstances, I find that the 1985 Will was properly executed. However, that is not the pivotal issue in these proceedings.

WAS THE 1985 WILL COMPLETE AT THE TIME IT WAS EXECUTED BY HUBERT?

[51] Section 17 of the Wills Act states:

17 (1) Subject to subsection (2), unless an alteration that is made in a will is made in accordance with the provisions of this Act governing the making of a will, the alteration has no effect, except to invalidate words or meanings that it renders no longer apparent.

(2) An alteration that is made in a will is validly made when the signature of the testator and the subscription of the witness or witnesses to the signature of the testator to the alteration are made

(a) in the margin or in some other part of the will opposite or near to the alteration, or

(b) at the end of or opposite to a memorandum referring to the alteration and written in some part of the will.

[52] There are no exceptions to the requirement of s. 17. After reviewing the evidence of Mr. Barbour, Ms. Graham and Mr. Graham, I have come to the conclusion that, while the alterations were in the handwriting of Hubert and undoubtedly evidenced his intent at the time they were made, the alterations were not made in accordance with the requirements of s. 17 of the Wills Act.

[53] I find the situation to be virtually identical with the facts found by the Court in Clarke Estate (Re) (1992), 27 E.T.R. (2d) 215 (Nfld.S.C.) and I share the regret expressed in that decision by Hickman C.J.T.D.:

The clear intention of Section 12 of the Wills Act is that any alteration by a testator must be executed in the manner required by the Act. I am conscious of the fact that the applicable law, precludes this Court from implementing the clear intention of the testator but where relevant statutory provisions and decided cases lead to but one conclusion then the Court must be governed by such legislation and the law. (at para. 14)

[54] In coming to the conclusion that the alterations were not made in accordance with what is set out in s.17 of the Wills Act, I take into account a number of factors arising out of the evidence. First, I prefer the evidence of Mr. Barbour to the evidence of Mr. Graham regarding their telephone call and what was said by Mr. Graham. There was good reason for Mr. Barbour to be very much surprised by and so remember the conversation that he had with Mr. Graham in 1987. Mr. Barbour described the information he received from Mr. Graham as being like a “bomb shell”, something which he considered on and off over the years, and something that any lawyer would remember clearly. Because Mr. Graham was not then versed about the statutory requirements surrounding the alteration of a will, I am satisfied that Mr. Graham would be straightforward in his recollection of what had happened in 1985 and what Hubert had said to him and his wife. I am satisfied that Mr. Graham would not have known that later alterations to a Will would invalidate what was set out in the alterations so that what he advised Mr. Barbour in 1987 would likely be accurate. As well, if Mr. Barbour had been told by Mr. Graham that the 1985 Will was completely filled in when it was executed, there would have been no reason why Mr. Barbour would not have submitted the 1985 Will for probate. That he did not proceed in that manner is consistent with his recollection that the advice received from Mr. Graham led him to the conclusion that the 1985 Will could not be probated without ascertaining the validity of the 1977 Will at the same time.

[55] Second, I accept the evidence of Messrs. Barbour and Chong that the conversation that Mr. Barbour had with Mr. Graham was then discussed and the options made known to Horace. Even though Messrs. Barbour and Chong may well have been involved in the probating of many wills, I think it more than likely that they would remember this particular will and the unusual circumstances surrounding the execution of the 1985 Will. There appears to be no reason why Messrs Barbour and Chong would make up the conversation that they had after Mr. Barbour says he was advised by Mr. Graham that the bequest portion of the 1985 Will was blank.

[56] Third, Mr. Graham was prepared to swear to the truth of the contents of his March 6, 1987 affidavit and that affidavit makes no mention of the 1985 Will and states specifically that on “numerous occasions” Hubert expressed “his intention to leave his entire estate to his brother Horace”. His affidavit was sworn only two years after the execution of the 1985 Will and is at odds with his September 20, 2002 affidavit sworn some seven years after the execution of the 1985 Will. If the alterations were not added until later, then it is more likely that Mr. Graham could say in 1987 that the 1977 Will expressed the actual intentions of Hubert to leave his entire estate to his brother Horace. While Mr. Graham later swears that the 1985 Will is “certainly consistent with the sentiments he had expressed to me over the few years prior to this occasion [the execution of the 1985 Will]”, I find that it would be more likely that what Mr. Graham said in 1987 two years after the execution of the 1985 Will would be more accurate than the recollection set out in his September 20, 2002 affidavit which was sworn some seven years after the event.

[57] Fourth, while Mr. Graham stated that he never saw the 1985 Will again after he witnessed the signature of Hubert, Mr. Graham also stated that he had the 1985 Will when the lawyer phoned him prior to swearing his March 6, 1987 Affidavit. I am satisfied that Mr. Graham did not have the 1985 Will when he swore his March 6, 1987 Affidavit as he only would have had the 1977 Will as I accept the evidence of Mr. Iwata that he was not aware of the 1985 Will when he forwarded the March 6, 1987 Affidavit to Mr. Graham for Mr. Graham to swear.

[58] Fifth, I am satisfied that the conversation that Mr. Barbour reports having had with Mr. Graham could only have taken place if Mr. Graham had the 1985 Will in front of him. I am also satisfied that there would have been no reason for Mr. Barbour to forward the 1977 Will to Mr. Graham when it was the intention of Mr. Barbour in 1986 to Probate the 1985 Will.

[59] I have no hesitation in coming to the conclusion that the alterations set out in the 1985 Will accurately represent the sentiments of Hubert when the alterations were made but that those alterations were made later and were not properly witnessed. While I found Mr. Graham to be a straightforward witness who was attempting to recount what had happened some 20 years earlier when the 1985 Will was executed in his presence and while I have no hesitation in coming to the conclusion that the clear intention of Hubert was evidenced in the alterations, I am satisfied that Mr. Graham has allowed his obvious and heartfelt desire to see that the intentions of Hubert are followed to cloud his memory about the question of whether Hubert who was like a father to him made the alterations before the 1985 Will was executed.

[60] In the circumstances but with considerable regret, I am satisfied that I am precluded from implementing the clear intention of Horace in view of the relevant statutory provisions and decided cases relating to the effect that the Court can give to alterations that are added after a will has been executed when the alterations are not properly witnessed. Unfortunately, the portion of the 1985 Will that was properly executed contained a revocation clause.

EFFECT OF THE REVOCATION CLAUSE IN THE 1985 WILL

[61] Merely because the 1985 Will contained a revocation clause does not necessarily mean that the 1985 Will revoked the 1977 Will. The doctrine of “dependent relative revocation” or “conditional revocation” can establish that the revocation clause in the 1985 Will was “conditional” and ought to be ignored so that the 1977 Will can be probated with or without the remainder of the provisions of the 1985 Will. In McCarthy et al. v. Fawcett et al, [1945] 1 D.L.R. 545 (B.C.C.A.), the Court dealt with a revocation clause stating “This only to be and contain my last will and testament” in a will in which the testator gave his entire estate to his wife unconditionally but made no provision for the disposition of his estate if his wife should predecease him. In dismissing the appeal from the learned trial judge who held that the later will revoked the earlier one because it contained a precise and unambiguous revocatory clause disposing of all of his estate and that there was nothing in the later will to support a finding of conditional revocation, Robertson J.A. stated:

... Again, evidence is admissible to show the testator did not know there was a revocatory clause in the later will -- see In the Goods of Oswald (1874), L.R. 3 P. & D. 162. There is nothing in the 1931 will to show that the intention of the testator was not as indicated in the document which disposed of the whole of the estate. In my opinion parol evidence bearing on the question of intention was inadmissible in this case; and even if admissible, falls far short of establishing any clear intention of the testator that the revocatory clause should not have its full effect. As was said in O'Connor's case, supra, if the circumstances of the case are to be considered they must be circumstances existing at the time when the will was made. On this principle the evidence of two of the witnesses as to what took place shortly before the death of the testator would not be admissible. The remaining evidence is of too vague a description in any event to found any conclusion as to the testator's intention. Cogent evidence is necessary -- See Lowthorpe-Lutwidge v. Lowthorpe-Lutwidge, [1935] P. 151. (at p. 551)

[62] Nevertheless, Robertson J.A. provided this statement dealing with the doctrine of dependent relative revocation:

A subsequent testamentary paper containing a revocation clause does not necessarily revoke a former will. It is clear that "probate of a paper may be granted of a date prior to a will with a revocatory clause, provided the Court is satisfied that it was not the deceased's intention to revoke that particular legacy or benefit" -- See Gladstone v. Tempest, 2 Curt. 650 at pp. 653-4, 163 E.R. 538. As is said in 34 Hals. (2nd ed.), p. 88, s. 126:

Revocation by destruction, or obliteration, or by subsequent will or codicil, may be conditional, and if the condition in question is unfulfilled the revocation fails and the will, as made before such revocation, remains operative.

Jarman on Wills, 7th ed., vol. 1, p. 155 states:

Questions of dependent relative revocation arise most commonly in cases where a will is destroyed or revoked by some physical act, and although the question can arise where a will purports to be revoked by a subsequent testamentary instrument, it would seem that there is greater difficulty in applying the general principle to such cases, because revocation by a written instrument is more deliberate and unambiguous than revocation by destruction.

The intention of the testator is the guide -- see Lemage v. Goodban (1865), L.R. 1 P. & D. 57 and Re Brown, [1942] 2 All E.R. 176 at pp. 177-8. Section 18 of the Wills Act provides that no will may be revoked, inter alia, otherwise than by another will, or by burning, tearing or otherwise destroying the same by the testator or by some person in his presence and by his direction, with the intention of revoking the same. As to the latter mode of revoking the will, as pointed out in Freel v. Robinson, infra, it is an equivocal act and parol evidence is admissible to show, amongst other things, the intention of the testator and the circumstances under which the will was destroyed.

But where a will disposes of the whole of the testator's estate and contains a clause revoking all former wills and testamentary dispositions the right to show his intention by parol evidence is limited. Riddell J. [now J.k.] in delivering the judgment of the Divisional Court of Ontario in Freel v. Robinson (1909), 18 O.L.R. 651 at pp. 654-5, said: The doctrine of dependent relative revocation, in strictness, is applicable only to a case of physical interference with a testamentary document with the intention of revoking it. Of the three methods by which a will may be revoked -- (1) marriage; (2) will, codicil, or other paper; (3) burning, tearing, or otherwise destroying: ... the first does not depend upon intent; the second only under certain circumstances will justify parol evidence as to intent; the third depends wholly upon intent, and parol evidence may always be given of the intent. Sir J.P. Wilde, in Powell v. Powell (1866), L.R. 1 P. & D. 209, at p. 212, speaking of the doctrine of dependent relative revocation, says:

This doctrine is based on the principle that all acts by which a testator may physically destroy or mutilate a testamentary instrument are in their nature equivocal. They may be the result of accident, or, if intentional, of various intentions. It is, therefore, necessary in each case to study the act done in the light of the circumstances under which it occurred and the declarations of the testator with which it may have been accompanied. For, unless it be done animo revocandi, it is no revocation. (at pp. 548-9)

[63] Robertson J.A. referred to a number of decisions from England which established a similar view of when the doctrine of dependent relative revocation could be invoked. The decision of In the Estate of Brown, [1942] 2 All E.R. 176 deals with facts which most closely approximate the facts in the present case. The decision in Brown was that, despite the presence of a revocatory clause in a second will, the two wills should be admitted to probate but with the revocatory clause in the second will kept from probate. The Testator made a will in 1934 with legal assistance and completely disposed of his estate. In 1939, he made a further will stating that he did: “… hereby revoke all testamentary dispositions hither to made by me and declare this to be my last will and testament”. In the clause dealing with the distribution of his estate, there were no named beneficiaries. Rather, the Court found the following facts:

… Instead of finding any names there, there was nothing in the document but some seven or eight ruled lines left blank, and on the next page the document contains the number 4 and in that sentence seven and eight are the words and 4 is the number and the wording “continued”, both in the handwriting of the deceased, obviously meaning to reserve some further five or six lines for the names and interests in which he had intended to describe in the body of the clause. There is not one word of writing to indication the name or interest of any beneficiary. Therefore, it is quite clear that the document has been left incomplete by the Testator (p.177).

[64] In this regard, Langton J. stated:

Now, if I have stated the task aright, what I have to do is deal with this second will and see whether it is the real intention of the testator that it should remain as it is, or whether I would more nearly be giving effect to his intentions by admitting the earlier will as well to probate. There is something to be said for both courses. If one were to leave the second will as it stands, one would at least have the assurance that one had given effect to some of his intentions, and the comforting reflection that at least one had not given effect to any other intentions that he did not mean to be carried out. If one admits as well the earlier document, one would go much further, because one would be covering the whole of his property; and there is the possibility (I think it is only a small possibility) that one would be giving effect to something which was not actually his intention. In the absence of any evidence that his intentions towards his legatees had varied and the absence of any evidence of events which were likely to make those intentions vary, it does not seem to me that the second risk is a very great one. (at p. 178)

The new matter that this case introduces, I think, is as to whether it is possible to say that the revocatory clause is conditional, although part of the document in which it is included is good and should be admitted to probate. For my part, in this case, I do not think there is any insuperable difficulty to adopting that view, but I would like to qualify that by adding this, that I think in such cases one needs to be abundantly clear that one is giving effect to the testator’s intention by taking that view. (at p. 178)

Now, the authorities are all of long standing, and I do not think I can usefully occupy time by citing the various passages, none of which is directly in point, upon which I am relying, in taking this course. I think it is clear from Sotheran v. Dening…[(1881), 20 ChD 1999], a case of great authority, that it is the business of the court in this matter, if possible, to give effect to the intentions of the testator; and counsel for the applicant cited to me a passage from Dancer v. Crabb… [(1873), L.R. 3 P. & D. 98], at p. 104, where SIR JAMES HANNEN quoted the following passage from the judgment of SIR WILLIAM GRANT, M.R., in Ex p. The Earl of Ilchester… [(1803), 7 Ves. 348], at p. 380:

The rule of the civil law is Tunc prius testamentum rumpitur, cum posterius perfectum est. In Limbery v. Mason...[(1734), 2 Con. 451] that is laid down as the rule of our law. There is no doubt but the testator by any writing, etc., or by any cancelling designed merely to disannul the former will, might have revoked it without more; but he designed to do it by a new will, and unless such writing be effective to operate as a will it shall not amount to a revocation.

That is the end of the citation of SIR WILLIAM GRANT, M.R. SIR JAMES HANNEN then goes on:

The decisions cited from Clarke v. Scripps… [(1852), 2 Rob. Eccl. 563] down to Eckersley v. Platt… [(1866) L.R.1 P. & D. 281] do not affect the application to the present case of the earlier authorities I have referred to. They enforce under varying circumstances the principle that although the testator does an act which unexplained would be one of revocation, yet if it appear that he did it only as a part of the means of setting up another will, if that end be not accomplished the former will is not revoked.

I could not rely upon that as being anything like direct authority for the course I am taking. It is direct authority for the proposition that if the second will failed the first will would not be necessarily destroyed by the existence of the revocation clause in the second will, but in this case, ex concessis, the second will does not fail. It is only incomplete. However, I think the other case cited to me — In the Goods of Irvine … [(1919), 2 I.R. 485], an Irish case — justifies me in taking the action which I intend to take here, in reliance upon the doctrine of conditional revocation. I hold that Captain Hope Brown put in the revocatory clause into the second will conditionally upon concluding that second will, and, as he failed to conclude it, the best effort I can make to give effect to his testamentary dispositions, as we know them, is to order that this second will shall be admitted to probate with the first will, but that the revocatory clause be kept from the probate. (at pp. 178-9)

[65] The doctrine of dependent relative revocation or conditional revocation has not been applied often in Canada. It may well be that no decision deals with a situation where a clear revocatory clause is present in a will where there is no disposition of an estate because alterations have not been properly witnessed. However, the doctrine has been invoked in the following situations:

(a) where the first will is destroyed but the subsequent will cannot be found: Re Hennessey’s Will; Canada Permanent Trust Company v. Holloway et al (1984), 46 Nfld.& P.E.I.R. 91 (Nfld. S.C.); and Re Keating Estate, [1981] N.S.J. No. (Q.L.) 112 (N.S. Ct. Probate);

(b) where the first will was said to have been cancelled but the second will could not be found: Irish v. Dwyer (1986), 23 E.T.R. 1 (Nfld. S.C.); Pigeon Estate v. Major, [1930] 2 D.L.R. 532 (S.C.C.); Re Teale (1923), 54 O.L.R. 130 (O.S.C.- H.C.D.); and Downey Estate v. Foster, [1991] O.J. (Q.L.) No. 3475 (Ont. C.J.-G.D.);

(c) where a second will was executed but the testatrix was found not to have had testamentary capacity: Sheen v. Sheen, [2005] 6 W.W.R. 627 (Man. C.A.);

(d) where a second will was found not to be valid because the attesting witnesses were not present when the document was signed or because one of the witnesses was the beneficiary: Valantine v. Whitehead (1990), 37 E.T.R. 353 (B.C.S.C.); and Re Tuckett (1907), 9 O.W.R. 979 (Surrogate Court);

(e) where a subsequent codicil was executed under the mistaken belief that one of the persons who would receive a residual bequest in the will had died: Sorensen Estate v. Hawley (1981), 10 E.T.R. 282 (B.C.S.C.); and

(f) where a portion of a will was cut out but never replaced: Re Service, [1964] 1 O.R. 197 (Ont. C. Ct.); and Re Anderson [1933] 1 D.L.R. 581 (Ont. C.A.).

[66] The revocation clause in the 1985 Will would ordinarily revoke the 1977 Will. However, a revocation clause would ordinarily be for the purpose of setting up a second will and, because that end was not accomplished, if the doctrine of dependent relative revocation/conditional revocation is applied the 1977 Will will not be revoked. However, this is not a case where the 1985 Will failed. Rather, it is a case like the situation found to be present in Brown, supra. The 1985 Will is only “incomplete”. While the revocation was by written revocation so it is more difficult to find that the revocation was conditional because the written revocation was deliberate and unambiguous, I am satisfied on the basis of the parol evidence available that it was only the intention of Hubert to revoke the 1977 Will while, at the same time, making the changes which he incorporated — the change of one executor to an executor and an executrix and the change from one beneficiary to some but not all of his siblings as beneficiaries.

[67] I find that the intention of Hubert when adding the revocation found in the 1985 Will was clear — he wanted to revoke the 1977 Will and substitute the bequests that he added to the 1985 Will after it had been executed. Accordingly, I hold that the revocatory clause in the 1985 Will was conditional, the condition being that the bequests which were set out would be valid. The best effort I could make to give effect to at least some of the intentions of Hubert is to order that the 1985 Will be admitted to Probate with the 1977 Will, but with the revocatory clause in the 1985 Will kept from Probate.

[68] However, I am satisfied that no useful purpose would be served by such a course of action. The Estate of Hubert has been administered. The only effective change which would be accomplished by admitting the 1985 Will to Probate without the revocatory clause would be that Horace and Estelle would then be substituted for Horace alone and would be the Executor and Executrix respectively of the Estate of Hubert. As the Estate of Hubert has been fully administered and as there is virtually nothing remaining for Estelle as the Executrix to undertake, no useful purpose would be served by giving effect to the one part of the 1985 Will which was capable of being admitted to Probate. Accordingly, while I find the revocatory clause in the 1985 Will to be conditional, the 1985 Will will not be admitted to Probate along with the 1977 Will.

SUMMARY

[69] The March 27, 1987 Grant of Probate will remain in full force and validity, there will be no pronouncement for the force and validity in solemn form of law of the 1985 Will, and no declaration that the Estate of Horace is holding the interests of the Plaintiffs or any of them in the Estate of Hubert in trust.

[70] The parties will be at liberty to speak to the question of costs.

“G.D. Burnyeat, J.”
The Honourable Mr. Justice G.D. Burnyeat