IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

Young v. Abercrombie,

 

2008 BCSC 389

Date: 20080401

Docket: 07-2227

Registry: Victoria

Re:  The Estate of Donald William Abercrombie, Deceased

Between:

Kim Amanda Young, Executor of the Estate of Donald William Abercrombie,

Deceased and the Estate of Donald William Abercrombie, Deceased

Petitioners

And:

Patricia Anne Abercrombie, Gemma Markham and Catrin Abercrombie

Respondents

Before: The Honourable Madam Justice Dorgan

Reasons for Judgment

Counsel for the Petitioners:

F. Hunter

Counsel for the Respondents:

J. C. Adams

Date and Place of Trial/Hearing:

February 19, 2008

 

Victoria, B.C.

[1]                The Executor of the estate of Donald William Abercrombie, Kim Amanda Young, petitions the Court for directions as to the construction of the will and codicil of her late father.  The petition is brought pursuant to s. 39 of the Trustee Act, R.S.B.C. 1996, c. 464.

BACKGROUND

[2]                Donald William Abercrombie ("Donald") died on December 16, 2005, leaving a will executed on November 19, 1981, and a codicil to the will executed on October 28, 2004.  He was survived by his two adult children, Kim Amanda Young ("Kim"), the named Executor, and Barry Donald Abercrombie ("Barry").

[3]                Clause 4(d) of Donald's will directs the Executor to:

… divide the rest and residue of my estate equally between my two children, KIM AMANDA ABERCROMBIE and BARRY DONALD ABERCROMBIE.  If either of my said children shall predecease me leaving issue, then such issue shall take in equal shares per stirpes the share such child would have taken if living.  If any of my said children shall predecease me leaving no issue, then the share to which such deceased child would have been entitled shall be transferred to my surviving child for his or her own use absolutely.

[4]                The codicil sets out the following:

Should either of my children become incapacitated due to illness or accident it is my instruction that my Trustee invest my incapacitated child’s share of my estate into investments or a form of annuity.  My Trustee shall have the sole discretion to invest monies and advance monies as she or he she sees fit.

In all other respects I confirm this will.

[5]                There is no dispute that Barry was diagnosed with Alzheimer's disease in about 2002.  The codicil was made roughly two years later.  In December 2006, approximately one year after their father's death, Kim, as Executor, invested $596,175 for Barry, which was one-half of the residue of the estate.

[6]                Barry died March 31, 2007.  The respondent, Patricia Anne Abercrombie ("Patricia"), is Barry's widow and the Executor named in his will.  Barry is also survived by two adult children, the respondents Gemma Markham and Catrin Abercrombie.

[7]                The Executor is before this Court for directions because in her submission, while Donald's intention in the will is clear -- namely, to divide his estate equally between his two children per stirpes, his intention in the codicil is less so.  The codicil, it is submitted, does not clearly state whether one-half of the residue of Donald’s estate vested in Barry at the time of Donald’s death.

[8]                If, pursuant to the will and codicil, Barry’s share of the estate is found to vest in Barry at Donald’s death, then this share passes to Barry’s estate at his death to be distributed to Patricia in her capacity as the Executor, and gifted to her as the beneficiary of his will.

[9]                If, pursuant to the will and codicil, Barry’s share did not vest in Barry at Donald's death, then it reverts back to Donald’s estate, to be distributed as on an intestacy:  one-half to Barry’s heirs and one-half to Kim.

[10]            Barry and Patricia were married for 38 years and lived in England.  Donald was a resident of British Columbia, as is Kim.  There seems to be no issue that Donald and Barry were close, as were Donald and his granddaughters.  According to Patricia's affidavit sworn November 12, 2007, if the Court finds the one-half interest in the estate vested in Barry at Donald's death, Patricia has instructed her solicitors to "... distribute 1/2 of those proceeds directly to each of Gemma and Catrin [Donald's grandchildren]."  She stated, "I consider that this would have been considered a desirable result to both Donald and Barry."

[11]            According to the evidence of the Executor, the codicil was made when it became apparent that Barry’s condition would not improve, and it was made without legal advice.  The Executor's further evidence is that her father wanted to ensure that funds would be available for Barry as long as he survived, and that her father did not want the funds to go to Barry's wife.

ISSUE

[12]            Did Barry's share of Donald's estate vest in Barry at the time of Donald's death?  Or, did Barry's share amount to a life interest -- a trust?

[13]            Turning to the law, it is the role of the Court, and the primary purpose in the construction of wills, to determine the intention of the testator.

[14]            In Williams on Wills, 7th ed., Sherrin et al wrote at pp. 185-186 that a will and codicil must be "construed together as one testamentary disposition, although not as one document".  The codicil must not be read to alter the will "further than is necessary to give effect to the intentions of the testator shown by the will and codicil taken together."

[15]            The respondents point out that where two clauses are inconsistent, the Court must reconcile them, if possible:  Re Brown Estate, [1996] B.C.J. No. 2230.  As well, a clear provision will not be controlled by a subsequent ambiguous one:  Feeney, Canadian Law of Wills, 4th ed., at s. 10.100.

[16]            Further, in the construction of wills, there is a strong presumption against intestacy.  This often-cited principle was articulated by Lord Esher, M.R. in Re Harrison Estate (1885), 30 Ch.D. 290 at 393-4, as follows:

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.

[17]            In the case at bar, if Barry's share did not vest at the time of Donald's death, an intestacy in respect of that share is the result.

[18]            In Baldissera v. Baldassi (1997), 18 E.T.R. (2d) 128 (B.C.S.C.) at para. 10, Edwards J., citing The Canadian Law of Wills, vol. 2, confirmed that:

There is a presumption against intestacy and the court will prefer an interpretation of the will which avoids an intestacy.

And further, at para. 11, Edwards J. held:

The court on reading the will as a whole may conclude that the testator clearly intended to dispose of his entire estate.  Once such an intention is clear the court will construe the will so as to give effect to the will in preference to a construction which will result in a partial or total intestacy.

[19]            A similar conclusion is found in Jankowski v. Pelek Estate, [1996] 2 W.W.R. 457, 131 D.L.R. (4th) 717 (Man. C.A.), where Helper J.A. at para. 76 stated, "[i]f the will is capable of two constructions, one which disposes of the whole estate and the other which leaves part of the estate undisposed of, the court will prefer the former."

[20]            Clearly, there are limits to the "golden rule" described in Re Harrison Estate, supra.   As Newbury J.A. quoted in Howell v. Howell Estate, 1999 BCCA 371, 175 D.L.R. (4th) 318 at para. 10, from McEwan Estate, Re (1967), 62 W.W.R. 277 (B.C.C.A.):

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.

[21]            Equally, the court cannot construe the words of a will and codicil "other than according to their ordinary meaning":  Re Campbell Estate, 2005 BCSC 1561, 20 E.T.R. (3d) 134 at para. 52.

[22]            In Laws v. Dobson Estate, 2006 BCSC 1519, 27 E.T.R. (3d) 147, Williams J. summarized at para. 57 that, "[w]here 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."

[23]            If the testator’s intention cannot be determined on the plain meaning of the words in the will and codicil, extrinsic evidence may be considered.  The process to be followed is set out in Re Burke Estate, [1960] O.R. 26, 20 D.L.R. (2d) 396 at 398 (Ont. C.A.), as follows:

Each Judge must endeavour to place himself in the position of the testator at the time when the will was made.  He should concentrate his thoughts on the circumstances which then existed and which might reasonably be expected to influence the testator in the disposition of his property.  He must give due weight to those circumstances in so far as they bear on the intention of the testator.  He should then study the whole contents of the will and, after full consideration of all the provisions and language used therein, try to find what intention was in the mind 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.

[24]            The process described in Burke, supra has been cited with approval by British Columbia Courts in Baldissera, supra, Davis Estate v. Thomas (1990), 40 E.T.R. 107 (B.C.C.A.), and Laws, supra, among others.

[25]            The respondents submit that the language used by Donald in the will and codicil is clear and unambiguous, and that the Court need not and ought not to resort to a consideration of extrinsic evidence.  The respondents submit that the "share" described in the codicil is the same "share" described in clause 4(d) of the will.  As such, the will and codicil construed together show that two "shares" vested in each of Donald’s children on his death.

[26]            The respondents also highlight that Donald wrote "my incapacitated child’s "share", with the apostrophe denoting possession or ownership, according to grammar references such as The St. Martin’s Handbook for Canadians (Nelson Canada), and common sense.

[27]            Thus, the respondents say that "the use of both the possessive apostrophe and the word 'share' in the same sentence, especially when clause 4(d) of the will and clause 1 of the codicil are read together", clearly indicate that Donald intended that Barry's share of the estate was to vest in Barry as of Donald’s death.

[28]            The respondents also point out that Donald wrote, "… it is my instruction that my Trustee invest my incapacitated child’s share of my estate …"; he did not write "what would have been my incapacitated child’s share".

[29]            The Executor submits that while Donald's intention in his will is clear, his codicil is worded ambiguously and leads to uncertainty.  I agree with the Executor in this regard, and I have concluded that a brief consideration of the extrinsic evidence is warranted.

[30]            Donald included the words "per stirpes" in his will.  This is consistent with his positive relationship with his grandchildren and consistent with a wish to have them inherit his son's share in certain circumstances.  However, the gift over to Barry's issue is conditional on Barry predeceasing, which was not the case.

[31]            In a consideration of the wording of the documents, I note that according to the codicil, the Executor is to invest Barry's "share" with discretion to pay out for his benefit.  While the codicil contains some provisions which have the hallmarks of a trust, it lacks a significant one, namely, what to do with the trust property upon the death of the beneficiary.

[32]            Accordingly, the codicil does not clearly and unambiguously change the nature of the gift to Barry from a share, as that gift is described in the will, to a trust, as might be inferred from the codicil.  I am of the view that since the codicil confirmed the will "[i]n all other respects", there must be clear and unambiguous language in the codicil to so dramatically alter the nature of the bequest as described by the will.  What Donald did not say in the codicil is as instructive as what he did say.  Donald did not state that the codicil was to override the will; he did not say he was changing the bequest to Barry which the will created; he did not say that Barry's "share" was for Barry's benefit for his lifetime only.

[33]            In the will, Donald refers to an equal division of his estate between his two children; each is to have an equal "share" unless one predeceases.  In this case, Barry did not predecease.  His share as described in the will is referred to in the codicil as "... my ... child's share ..."

[34]            In my view, the use of the same word ("share") in each of the documents is inconsistent with the subsequent creation (by the codicil) of a gift substantially different from that in the will.  Rather, it is consistent with the codicil reflecting further directions for the share of the estate as that share is described in the will.

[35]            And finally, if it is reasonable to do so, the will and codicil should be read in harmony so as to avoid an intestacy.  Donald clearly intended to dispose of his entire estate, and it is therefore the role of the court to construe his will and codicil in a manner that does so.

[36]            Here, if an intestacy is the result, one of Donald's children, Kim, will receive 75% of his estate, while the heirs of the other, Barry, will receive 25%.  That result does not confirm Donald's will; it re-writes it, both in respect of the bequest to Barry, and also to Kim.  The intended equal sharing between Donald's children would not be the result.

[37]            In all of the circumstances, I have concluded that Donald’s will and codicil, when read together, provide for the vesting of one-half of the residue of Donald's estate in Barry when Donald died.

[38]            As to costs, after the Executor received legal advice which alerted her to a potential problem, she quite properly brought the matter to Court.  In such circumstances, she is entitled to costs on a full indemnification basis.  The matter in Court relates only to Barry's share of Donald's estate.  Accordingly, the Executor's costs are to be paid from Barry's share.

                   "J. L. Dorgan, J."                   

The Honourable Madam Justice Dorgan