2006 BCSC 1519 Laws et al v. Rabbitt et al

Before: The Honourable Mr. Justice Williams

Reasons for Judgment

Counsel for the Petitioners	Robin Jackson
Counsel for the Respondent, Cynthia Rabbitt, Executrix	Sky Anderson
Counsel for the Respondents, Helen Edythe Shireen Arnott, and others	Rodney A. Chorneyko
Date and Place of Hearing:	September 1, 2006
	Vernon, B.C.

INTRODUCTION

[1] These are two applications by certain individuals, who are among the beneficiaries of the estate of Marjorie Violet Dobson, seeking to have the Court construe her will.

BACKGROUND

[2] The testatrix, Marjorie Dobson, died on June 11, 2004, at the age of 86. She had no children.

[3] Ms. Dobson married her first husband, Ned Jackson, in 1936. The couple purchased a lot in Sicamous, B.C. in the 1940s and built a home there. Mr. Jackson died in April 1950. Ms Dobson continued to live in the house until 1979 when she sold it for the sum of $100,000. She took back a mortgage in the amount of $32,500 of that purchase price; that mortgage was in her own name.

[4] Ms. Dobson married her second husband, Art Dobson, in September 1978, prior to the sale of the Sicamous property.

[5] The petitioners in this action are the nieces and nephews of Ms. Dobson; I may also refer to them as the Laws group. In the event of an intestacy, they would be entitled to share in the estate.

[6] The respondents, with the exception of Cynthia Rabbitt, a friend of Ms. Dobson and the executrix of the estate, are descendants of Art Dobson. I may refer to them from time to time as the Dobson group. They are not blood relatives of the testatrix, Ms. Dobson, and they would not receive anything in the event of an intestacy.

[7] Following the sale of the original property, Ms. Dobson subsequently purchased another home in Sicamous in April 1979, paying $47,500. That property was in her name alone. She owned that property up until the time of her death. Ms. Dobson was approximately 60 years of age at the time of her second marriage, that is, her marriage to Mr. Dobson.

[8] Mr. Dobson had also been previously married. He was widowed in May 1976. He and his first wife owned a home in Vancouver that was sold in 1975. Mr. Dobson made a profit of $35,000 on that property and gave each of his three children $11,000 following the sale, around the time of the death of his first wife.

[9] In 1979, both Marjorie and Art Dobson arranged to make wills. These wills were drafted by a solicitor and were essentially mirror images of one another. Each of the wills contained clauses granting the executor the power to convert assets to cash and provided for the estate of each to pass to the other as the survivor. Failing the survival of the partner, the estate passed to beneficiaries on both sides of the family; that is, each member of the Laws group and of the Dobson group was to receive an equal share.

[10] Art Dobson passed away in January 1996. Subsequently, Marjorie Dobson made a new will, dated September 6, 1996. It is this will, which superseded the 1979 will, that is in dispute in the matter presently before this Court.

[11] Ms. Dobson’s will is a typewritten document, three pages in length, signed by her and bearing the signatures of two witnesses, Helen Bell and Allan Bell. Mr. Bell is indicated as being a notary public of Sicamous, B.C.

[12] Mr. Bell was permitted to use the term “notary public in and for the Province of British Columbia”, but was not a notary entitled to prepare a will for a fee or to hold himself out as qualified to do so. His grant of authority was limited by section 15 of the Notaries Act, R.S.B.C. 1996, c. 334. Specifically, he was empowered to administer oaths, to take affidavits, declarations and acknowledgements, to attest instruments by the person’s seal and to give notarial certificates of the person’s acts.

[13] The will bequeaths all of Ms. Dobson’s estate, both real and personal, to her executrix, upon a number of trusts. She then bequeaths specific gifts of cash to three named beneficiaries, following which, the will directs that the executor shall “pay to and transfer from the cash residue of my estate after all just debts and abovementioned bequeaths have been paid and transferred, to the following persons, share and share alike.” There followed the names of a number of individuals who comprise the petitioner and respondent groups.

[14] The will contains no clause which would direct or empower the executrix to convert non-cash assets to cash; it is silent in that respect. Furthermore, it makes no specific provision for the disposition of Ms. Dobson’s real or personal property.

[15] At the time of her death, Ms. Dobson had approximately $140,000 in cash or bonds, as well as clear title to her home, which had an approximate value of $117,000. She also had some personal property consisting of an automobile with a value of $1000 and household goods which were assigned a value of $5000.

[16] As a consequence, on the face of the will, the cash component of Ms. Dobson’s estate is bequeathed to a number of named beneficiaries; the petitioners and the respondents each receive an equal share. No direction is made for the disposition of the non-cash assets.

[17] The respondents have tendered as evidence in this proceeding a draft affidavit of Mr. Bell. It was apparently prepared in May 2005 but was never sworn. Mr. Bell is now deceased.

[18] In his unsworn affidavit, Mr. Bell states that he is certain that he prepared Ms. Dobson’s will, the will that is in issue in these proceedings. He also makes reference to a draft will which was contained in his file. He states that he is certain he did not prepare that will but believes it was brought to him by Ms. Dobson in draft form with the intention that it would constitute her will. He believes he used that draft will as his instructions to prepare Ms. Dobson’s will. He also located in his files another draft will in the name of Ms. Dobson. He observes in his affidavit that the other draft is identical to the actual will which was sworn, except that the draft includes a “sell and convert” clause which empowers the trustee to sell any part of the estate and convert it into money. In brief, he states that it is his usual practice to include such a clause and he expresses the belief that it was intended that such a clause would be contained or included in Ms. Dobson’s will but it was not, apparently by oversight.

[19] Ms. Rabbitt, the executrix, has filed an affidavit. She was a co-worker of the testatrix and a personal friend for many years.

[20] Shortly before the death of Ms. Dobson, Ms. Rabbitt became specifically aware of the will. She also became aware of a note which was left in Ms. Dobson’s safety deposit box, “demanding” that she (Ms. Rabbitt) withdraw $20,000 from Ms. Dobson’s account and use it for her own purposes. At the foot of the note is the following notation: “Please do this as soon as you are to act for me”.

[21] Ms. Dobson’s will provides for Ms. Rabbitt as executrix to receive the sum of $1,000. There is no mention in the will of any other benefit to be paid to Ms. Rabbitt.

[22] In Ms. Rabbitt’s affidavit, she speaks of her knowledge of Ms. Dobson’s intention for the passing of her estate.

[23] Subsequent to Ms. Dobson’s death, Ms. Rabbitt retained a lawyer and took the necessary steps to deal with the estate. A Grant of Probate was made by the Court on November 17, 2005.

[24] Later, when the present dispute arose, a further application was made, seeking an order that the matter would be brought before the Court for construction of the disputed concern. That was granted.

[25] There have been conflicting directions made concerning the remuneration that the executrix was entitled to receive. At one point, she had taken sums that substantially exceeded the amount of $1000 provided for in the will. Those sums have been restored to the estate.

[26] The executrix apparently believed that she was empowered to sell the Sicamous property and did so. Title has been transferred and payment received. The sale proceeds are, to my understanding, held in an account, pending resolution of the present dispute.

[27] There is no evidence with respect to the disposition of the personal property that Ms. Dobson owned.

RELIEF SOUGHT

[28] There is a certain overlap in the pleadings. Both the petitioners (the Laws group) and the respondents (the Dobson group) have filed notices of motion.

[29] The petitioners seek determination as to whether the will gives the executrix the power to sell real property in the name of the deceased, whether it provides a fixed amount of remuneration for the executrix outside of compensation for expenses occurred, and whether clause 6(d) directs the executrix to pay and transfer to the named beneficiaries cash residue only, or whether it constitutes a residual gift of the balance of the property of the deceased, including real property.

[30] In their statement of claim, the respondent beneficiaries seek an order that clause 6(d) of the will be interpreted such that the “cash residue” includes all assets of the estate including real property and the proceeds of sale therefrom.

ISSUES TO BE DETERMINED

[31] There are two issues to be determined. The first is relatively straightforward and, as will be explained below, resolves without controversy; that is the matter of the remuneration to which the executrix is entitled.

[32] The second issue is more substantial. It entails considering whether this Court should “read in” to the will a “sell and convert” clause, or alternatively, whether a significantly broadened meaning should be assigned to the phrase “cash residue”. If either of these outcomes were to result, the entire estate would pass to members of both the petitioner group and the respondent group (except for the executrix); if neither result is ordered, there is a partial intestacy and a significant portion of the estate will pass, in that fashion, to the petitioners.

[33] A series of questions have been framed in the petitioners’ outline. As they appear to capture the matter, I propose to answer them:

1. Does the will provide a fixed amount for remuneration of the executrix outside of compensation for any expenses incurred by the executrix?

2. Does the will give the executrix the power to sell real property owned by the deceased?

3. Does clause 6(d) direct the executrix to pay and transfer to the beneficiaries named on pages 2 and 3 cash residue only, or does this constitute a residual gift of the balance of the testatrix’s property including real property?

4. What evidence can the Court consider in the determination of the above issues?

5. Costs.

POSITIONS OF THE PARTIES

[34] The petitioners say that the expressed intention of the testatrix should be given effect. They say it is not reasonable to conclude that there is any omission in the will that would entitle the Court to imply a clause granting the executrix the power to sell and convert to cash the real property of the testatrix. Furthermore, they say that the bequest of the “cash residue” is clear and unequivocal and is limited only to the actual cash in the estate. Accordingly, they take the position that the will does not provide for the disposition of the real property, and it therefore devolves as an intestacy.

[35] With respect to the remuneration to be paid to the executrix, it is the position of the petitioners that it must be limited to the sum provided by the specific clause of the will, namely $1,000, in addition to the reasonable expenses incurred.

[36] The respondents contend that the will is ambiguous because it omits specific mention of a “sell and convert” clause, and the Court should interpret the will by adding a clause directing the executrix to convert the non-cash assets into cash.

[37] Alternatively, these respondents say that in order to give effect to the intention of the testatrix, the will should be interpreted to omit the word “cash” from the residuary clause, or in the further alternative, the will should be interpreted to give a broad rather than a narrow interpretation to “cash” in the residuary clause, such that it would include all remaining wealth, including the wealth represented by the house.

[38] Insofar as the remuneration of the executrix is concerned, these respondents concur in the position taken by the petitioners.

[39] The respondent executrix takes no position concerning the issue of the construction of the will as it relates to the disposition of the real property.

[40] With respect to the matter of her remuneration, she accepts that the law supports the position taken by the petitioners and the other respondents, and does not oppose their claim for relief.

ANALYSIS

[41] Essentially, because the will has been probated, my task is to determine its correct construction. In this case, three alternative scenarios have been submitted: (1) the will is ambiguous because of the omission of the “sell and convert” clause, and such a clause should be added; (2) the will should be interpreted to omit the word “cash” from the residuary clause; or alternatively, (3) the word “cash” should be broadly construed to include both real and personal property.

[42] I will commence with a review of the legal principles that govern this matter.

General construction principles

[43] Lord Simon, L.C., in Perrin v. Morgan, [1943] A.C. 399 (H.L.) at 406, stated:

The fundamental rule in construing the language of a will is to put on the words used the meaning which, having regard to the terms of the will, the testator intended. The question is not of course what the testator meant to do when he made his will, but what the written words he uses mean in that particular case – what are the “expressed intentions” of the testator.

[44] This liberal approach following Perrin, supra, has developed into a method of construction that is often referred to as the ‘armchair rule.’ Application of this rule requires that the court put itself in the position of the testator at the point when he or she made the will, and construe the language from this vantage point in order to determine the actual or subjective intent of the testator: James MacKenzie, Feeney’s Canadian Law of Wills, 4^th ed., looseleaf (Toronto: Butterworths, 2000) [Feeney’s] at 10:46. This process was described in Re Burke Estate, [1960] O.R. 26, 20 D.L.R. (2d) 396 at 398 (C.A.) and was cited with approval in Davis Estate v. Thomas (1990), 40 E.T.R. 107 (B.C.C.A.):

Each judge must endeavour to place himself in the position of the testator at the time when the last will and testament was made. He should concentrate his thoughts on the circumstances which then existed and which might reasonably be expected to influence the testator in the disposition of his property. He must give weight to those circumstances in so far as they bear on the intention of the testator…When an opinion has been formed as to that intention, the Court should strive to give effect to it and should do so unless there is some rule or principle of law that prohibits it from doing so.

[45] It is worth noting, however, that these rules of interpretation and construction are applied only if the intention of the testator cannot be determined on the plain meaning of the words in the will: Fleury Estate v. Fleury Estate, [1965] S.C.R. 817 at 829, Van Den Hurk Estate v. Van Raan, 2005 BCSC 845 at para. 12; Feeney’s at 10:19.

The presumption against intestacy

[46] It is a basic principle of the law that, to the most substantial extent possible, there should be a presumption that the testator intended to dispose of his estate by way of the will; intestacies should, where possible, be avoided. In Re Harrison Estate (1885), 30 C.D. 390 at 393 - 394, Lord Esher, M.R. said:

There is one rule of construction, which to my mind is a golden rule, viz., that when a testator has executed a will in solemn form you must assume that he did not intend to make it a solemn farce – that he did not intend to die intestate when he has gone through the form of making a will. You ought, if possible, to read the will so as to lead to a testacy, not an intestacy. This is a golden rule.

[47] In Re Harmer, [1965] S.C.R. 24, (1964) 46 D.L.R. (2d) 521, Ritchie J. stated at 524 - 525, in approval of the majority decision to construct a will in order to dispense of the full property of the testator, that:

It appears to me, however, when an individual has purported to make final disposition of all his “property both real and personal in every nature and kind and wheresoever situate”, he is not to be taken to have intended to leave that property undisposed of on the happening of certain events, unless there are some very exceptional and compelling reasons for so holding. As was said by Lord Shaw in Lightfoot v. Maybery, [1914] A.C. 782 at p. 802, a construction resulting in an intestacy “is dernier resort in the construction of wills.”

[48] At the same time, the authorities suggest quite clearly that there is a practical limit beyond which the court ought not to go to avoid an intestacy. In Howell v. Howell Estate (1999), 175 D.L.R. (4^th) 318, 1999 BCCA 371, Newbury J.A. observed at para. 10:

It is one thing to try to give effect to a testator’s intention where he has used an ambiguous word or phrase; it is entirely another thing to supply a missing bequest out of thin air.

[49] In Re McEwen Estate (1967), 66 D.L.R. (2d) 87, 62 W.W.R. 227 at 282, Tysoe J. said this:

In the course of the argument we were reminded of the so-called presumption against intestacy. That presumption is sometimes useful where the construction of the will is doubtful and there is room for two interpretations. In such a case the court will be inclined to lean against an interpretation that will result in intestacy. The avoidance of intestacy is not enough to induce the court to give an unnatural meaning to words or to construe plain words other than according to their plain meaning.

[50] The presumption against intestacy was not found sufficiently persuasive in Klein (Public Trust of) v. Cochrane, [1981] 1 W.W.R. 41, (1980) 21 B.C.L.R. 273 (B.C.S.C.), or in Re Hughes-Hallet Estate, [1982] B.C.J. No. 1662 (B.C.S.C.) (QL). Similarly, this Court did not feel bound by the presumption against intestacy in Re Campbell Estate, 2005 BCSC 1561 at para. 52. There, Kelleher J. considered the presumption against intestacy in a situation which involved construction of a substantial residue clause. Kelleher J. did not follow the presumption against intestacy because he found that such a construction would be patently in opposition to the ordinary meaning of the words.

While the court favours a construction that will not result in an intestacy, it should not prefer such a construction if it means construing the will’s words other than according to their ordinary meaning.

Kelleher J. stated that the court may find for intestacy when the testator simply did not turn his or her mind to the circumstances which have arisen and the will is silent on the matter.

Extrinsic evidence

[51] With respect to the matter of evidence that may be considered in the course of construing a will, the authorities make clear that the court is entitled to consider the “surrounding circumstances” to discern the testator’s intention. In Re Tyhurst Estate, [1932] S.C.R. 713, 4 D.L.R. 173 at 719, Lamont J. stated:

In construing the language of the testator where it is ambiguous, we are entitled to consider not only the provisions of the will, but also the circumstances surrounding and known to the testator at the time when he made the will, and adopt the meaning most intelligible and reasonable as being his intention.

[52] Before a will comes to the court of construction it must have been probated. The probate court will determine which documents comprise the will and whether they are valid and testamentary in nature. The only task for the court of construction is to give meaning to the actual words of the probated will. An alleged drafting issue or mistake will be dealt with during the probate process.

[53] It is not permissible for a court of construction to consider the evidence of the party who drew the will as to the testator’s intention: Re Hornell Estate, [1944] 4 D.L.R. 572, O.W.N. 664, aff’g [1945] 1 D.L.R. 440 (S.C.). Similarly, the evidence of a witness testifying of the understood intention of the testator is not admissible for this purpose: Stafford Estate v. Thissen (1996), 5 O.T.C. 130, 12 E.T.R. (2d) 201 (Gen. Div.) and Feeney at 10:26-28.

[54] Affidavit evidence tendered to correct or explain an alleged drafting omission is properly within the jurisdiction of probate; it is not within that of the court of construction.

[55] Where the issue is whether the court has authority to order the insertion of a clause which it is contended has been omitted, the following principle is stated in R. Jenning, ed., Jarman On Wills, 7^th ed., vol. 1 (London: Sweet and Maxwell Limited, 1951) at 556 [Jarman]:

Where it is clear on the face of the will that the testator has not accurately or completely expressed his meaning by the words he has used, and it is also clear what are the words he has omitted, those words may be supplied in order to effectuate the intention, as collected from the context. This principle has been used by the courts to, through the application of common sense, interpret or add to the text of the will.

[56] In Re Follett Estate, [1955] 1 W.L.R. 429, the English Court of Appeal considered the rule set out in Jarman. It found the testator’s intention not to be patently obvious. Romer L.J. said:

The rule as so expressed has two limbs. The first is that the court must be satisfied that there has been an inaccurate expression by the testator of his intention, and the second is that it must be clear what words the testator had in mind at the time when he made the apparent error which appears in the will. It is the second part of the rule that, I think, presents the greatest obstacle to the respondents in case. Unless one can be reasonably certain from the context of the will itself what are the words which have been omitted, then one cannot apply the principle at all, and one has to take the language as one finds it.

Accordingly, the court declined to read in further words.

Summary of Principles to be Applied

[57] Thus, very succinctly stated, it is my understanding from the authorities that the basis upon which I should proceed is to examine the will to determine whether there appear to be words that are omitted or not clear. Where there is an omission that is plain on its face or an ambiguity, I may apply common sense to make a change or addition, but may only do so where the testator’s intention is clear. I am entitled to consider the context of the whole will and surrounding circumstances which existed at the time of the execution of the will, and I should prefer an interpretation that will avoid an intestacy. I am not permitted to consider evidence of the testator’s intention as provided by the party who drew the will or from any person who purports to be able to say what that intention was. Any affidavit which offers double-hearsay evidence is not admissible.

Application to the Facts at Bar

[58] I turn now to consider the will in light of these principles.

[59] As noted, the will as drawn bequeaths the house to the executrix, but there is no power to sell granted to her. According to the will, the house remains in specie and, because it is not converted to cash, it does not form part of the estate which is to be shared among all of the beneficiaries.

[60] Because no specific provision is made for the house and other personal property of Ms. Dobson, they will necessarily pass by way of intestacy unless the Court accedes to the position urged by the respondents. In the event of intestacy, those items pass to the petitioners; the beneficiaries who comprise the respondent group (but for the executrix) will have no share of the benefit.

[61] In essence, those respondents ask this Court to construe the will so as to either “read in” a sell and convert clause, or alternatively, to interpret the “cash residue” to mean all of the testratrix’s estate, including her personal and real property. The petitioners say that the Court should not add any clause and, furthermore, should not assign any meaning to “cash residue” other than its plain and straightforward literal meaning.

[62] I accept at the outset that the absence of a sell and convert clause is unusual. Typically, such a clause is included in a will. In this case, its absence, failing some other order of the Court, results in a partial intestacy.

[63] In my task, I am entitled to consider surrounding circumstances. Those that I consider in this case are the following:

1. The real property which is the principal asset in contention was brought by Ms. Dobson into the marriage and was registered in her name throughout. Mr. Dobson had sold his home and had shared the profits of the transaction among his children at the time of the sale. There is no evidence that he had any role in the acquisition of the Sicamous house.

2. While this will was not drawn by a solicitor and it is not a model of drafting excellence (I observe at least one formatting flaw, one spelling error and one typographical error), it reflects at least a modest level of expertise.

3. The petitioners are all related by blood to the testatrix; the respondent beneficiaries are not her blood kin but are rather the descendants of her second husband. There is nothing further known about the relationship or her disposition toward these persons.

[64] I am not permitted to consider the testatrix’s intentions as they are described in the affidavit of the executrix.

[65] There is the matter of the draft unsworn affidavit of the notary public, Mr. Bell. It is tendered in evidence in this proceeding through the filed affidavit of Jon Arnott, one of the respondent beneficiaries. He is a lawyer. Paragraphs 10 and 11 of that affidavit state:

The Dobson Family instructed our counsel, Rodney A. Chorneyko, to make inquiries concerning the matters now raised in these proceedings. In furtherance of those instructions he met with Alan Bell and the Respondent Cynthia Rabbitt, Executrix of the (sic) Marjorie’s Estate. I am advised by Mr. Chorneyko and verily believe to be true that as a result of those meetings Mr. Chorneyko prepared a draft affidavit for the Respondent Allan Bell. A true copy of that draft affidavit (the “Bell Draft Affidavit”) is attached hereto as Exhibit “B”.

I am further advised by Mr. Chorneyko and verily (sic) to be true that Allan Bell confirmed to Mr. Chorneyko that the contents of the Bell Draft Affidavit were accurate, but that he declined to sign it. Attached hereto as Exhibit “C” is a true copy of a letter dated May 4, 2005 from Mr. Chorneyko to Allan Bell. Attached hereto as Exhibit “D” is a true copy of a letter dated May 9, 2005 from Allan Bell to Mr. Chorneyko.

[66] I do not ascribe any evidentiary value to that document. There is the glaring concern that it is double hearsay. Furthermore, there is the fact that Mr. Bell apparently participated in the preparation of the draft, but then declined to sign it. There is no explanation before me as to why that is so. Finally, as discussed above, this is not evidence of the type that a court of construction should properly take into account. In short, it is fraught with problems and, accordingly, will not form any part of my consideration of the circumstances.

[67] For this Court to construe the will as the respondents urge, it is necessary to either import a significant term into the document or to attribute quite an exceptional meaning to a clause contained within the document, “cash residue”. In order to do either of these things, I must conduct a two stage analysis; each stage must be satisfied. The first stage is to conclude that there has been an omission, one that quite literally “leaps to the eye”: Re Smith, Veasey v. Smith and Another, [1947] 2 All E.R. 708 and cited with approval in Canada Trust Co. v. Banks (1981), 26 B.C.L.R. 199, [1981] 4 W.W.R. 549.

[68] In the present case, although it might be something of an overstatement to say the omission or deficiency “leaps to the eye”, it is reasonably apparent that there is either an omission or an inaccuracy in the way this will has been drawn.

[69] Assuming that finding, the second stage of the process permits this Court to supply the word or terms omitted, or to correct the inaccuracy, but only where it is clear what words or expression were omitted or what error is contained. The Court can only make that change and address the deficiency in order to effectuate the intention of the testator where it is clear what the testator actually intended.

[70] As discussed, I conclude that it is reasonable to find that the testatrix omitted to include either a sell and convert clause, or a clause specifically bequeathing her real property to any particular beneficiary or beneficiaries. However, it is the second step of the analysis which prevents me from construing this will as urged by the respondents. I say that because I am not satisfied on all the available evidence that it is clear that it was this testatrix’s intention that all of her estate should be shared equally among the members of both beneficiary groups. Even accepting that it seems awkward to gift a real property to a number of persons, there is at least a reasonable possibility that she intended that the bounty of the home should pass to her kin, and not to the descendants of her late second husband, given that they had earlier shared in the benefit of the profits of his home, and that she brought her home to the marriage.

[71] In the circumstances, I decline to read into this will a clause which would grant to the executrix the authority to sell the home and convert its value to cash for inclusion with the “cash residue”.

[72] I turn now to the submission advanced by the respondents that this Court should either attribute a meaning to “cash reside” that would encompass all of Ms. Dobson’s estate, including the real property, or achieve the same effect by “reading down” the phrase to simply “residue”.

[73] I have considered carefully the authorities offered in support of this approach. In my view, they do not enable that outcome to properly result. The testatrix used the expression “cash” in her will, prior to using it in the contested clause. In so doing, she clearly used it in a specific fashion, one that is inconsistent with the more general meaning, the one that the respondents argue should be attributed. While reference has been made to dictionary meanings that are broad and general, meaning, in effect, “wealth”, such an attribution in the present situation would be quite clearly contextually inconsistent. As well, the task, as I have observed earlier, involves a two stage process. For this argument to succeed at the second stage, I would have to conclude that the testatrix’s intentions were to pass all of the estate to all of the beneficiaries in an equal fashion. For reasons explained earlier, that is not the case.

[74] Accordingly, I decline to interpret the clause “cash residue” in the manner urged by the respondents.

[75] Turning now to the matter of the executrix’s remuneration, in the course of the hearing, all counsel, including counsel for the executrix, indicated a concurrence in the view that the remuneration to which Ms. Rabbitt is entitled is limited to $1000, as provided in para. 4(c) of the will.

[76] It is apparent that there has been confusion surrounding this issue, and that is somewhat understandable. I am satisfied that Ms. Rabbitt has worked diligently to fulfill her obligations. It has taken a toll on her and it would not appear that she has been well-treated or that her efforts have been appreciated. Certainly, in my view, she is not to be criticized for what she has done in the course of acting as executrix.

SUMMARY

[77] The questions that were framed earlier are answered as follows:

Question 1 Does the will provide a fixed amount for remuneration of the executrix outside of compensation for any expenses incurred by the executrix?

Answer: The will provides for the executrix to receive $1,000; that will be her remuneration.

Question 2 Does the will give the executrix the power to sell real property owned by the deceased?

Answer: No.

Question 3 Does clause 6(d) direct the executrix to pay and transfer to the beneficiaries named on pages 2 and 3 cash residue only or does this constitute a residual gift of the balance of the testatrix’s property including real property?

Answer: It directs the executrix to pay and transfer to the beneficiaries named on pages 2 and 3 the cash residue only, and does not permit her to transfer to all of them all the property, including real property.

Question 4 What evidence can the Court consider in the determination of the above issues?

Answer: The Court is permitted to consider the circumstances surrounding and known to the testatrix at the time when the will was made. It is not permitted to consider double hearsay evidence, nor can it consider the evidence of witnesses who purport to state the testatrix’s intentions at the time the will was made.

Question 5 Costs. I will deal with this issue directly.

COSTS

[78] Both the petitioners and the respondents in their notices of motion seek costs. The issue was not addressed in detail in the submissions of counsel.

[79] In my view, the issue that has been litigated here was by no means clear, and there is no basis to suggest that the matter should not have come to hearing.

[80] Having given the matter careful consideration, it is my view that costs of this application should be paid from the estate. I order that each of the parties recover their special costs and disbursements, either as agreed or taxed. All assessments of special costs shall take place before the same district registrar or master.

[81] There is a further complication with respect to costs, and that arises from the fact that the assets of the estate at this point are essentially in two separate components. There is the pool of cash that represents the “cash residue” to be distributed to all eleven beneficiaries. There is also the cash which represents the proceeds of the sale of the house.

[82] In light of this fact, and in a best effort to do justice among all of the parties concerned, the recovery of costs shall proceed in the following manner:

A. All agreed or taxed costs and disbursements shall be totalled.

B. The total from (A) shall be divided into two equal amounts.

C. One of these said amounts shall be paid from the proceeds of the sale of the house; the other sum shall be paid from the pool of funds that represents the cash which is to be distributed as the “cash residue”.

D. The remaining pools will then be distributed to the entitled beneficiaries. The cash residue pool shall be shared among all of the named beneficiaries, that is, both the petitioner and respondent groups. The proceeds of the sale of the house, after one-half of the costs are deducted, shall be shared equally among the persons who comprise the petitioner group, by way of intestacy.

“J. Williams, J.”
The Honourable Mr. Justice J. Williams