J. IN THE SUPREME COURT OF NOVA SCOTIA Citation: Thomas E. Pekar, Executor of the Estate of Jane Mitchell, deceased v. Alfred Smithers and Keith B. MacRae, Executors of the Estate of John Donald Mitchell, deceased, 2003NSSC223 Date: 20031114 Docket: 196592 Registry: Halifax Between: Thomas E. Pekar, Executor of the Estate of Jane Mitchell, deceased v. Alfred Smithers and Keith B. MacRae, Executors of the Estate of John Donald Mitchell, deceased Respondents Judge: The Honourable Justice Frank Edwards Heard: October 30, 2003, in Halifax, Nova Scotia Written Decision: November 14, 2003 Counsel: Roberta J. Clarke, Q.C., for the Applicant Robert G. Belliveau, Q.C. for the Respondents David G. Coles, Q.C. and Nicole E. Godbout, for the surviving children and certain grandchildren of the Testator By the Court: [1] This is an application for the interpretation of the Last Will and Testament of John Donald Mitchell, and specifically to determine the entitlement of the Estate of Jane Mitchell under the Will pursuant to Section 31 of the Wills Act, RSNS 1989, C 505. [2] Facts: The Applicant, Thomas Pekar (“Tom”) is the widower of Jane Mitchell (“Jane”), who died on November 8, 1999, in Ontario where she was resident. Tom is the Executor and Trustee named in her Will dated December 21, 1991. Tom is the sole beneficiary under Jane’s Will (excepting her jewellry and personal clothing). Jane’s Will was admitted to probate in the Superior Court of Ontario on November 13, 2002. Jane was a child of John Donald Mitchell (“J.D.”) who died on December 23, 1999, in Halifax, Nova Scotia. Jane was survived by three children, all of whom are still living. [3] J.D. left Will dated January 6, 1994, which was admitted to probate on February 1, 2000. The Will was prepared on a pre-printed stationer’s form with handwritten portions indicating the disposition of J.D.’s assets. It appears that from time to time after the original date of the Will, J.D. made attempts to make changes in his Will, but these were not properly executed and witnessed. [4] In particular, J.D. provided in the fourth paragraph of the Will as follows:“I Devise and Bequeath the Real and Personal Estate of which I may die possessed, in the manner following, that is to say:-1. My following assets are to be sold and proceeds divided among my children, Jane, Nancy, Heather, Richard, Greg: a) Bank accounts. b) Cash, stock, bonds and the contents of my trading account at Midland Walwyn, together with any and all other investments. 2. Before division of Item 1, give the following [cash bequests] ... 9. My personal effects, guns, books, paintings, pictures, watches, medals, furniture etc., are to be given in accordance with List attached. 11. All of the inheritances which leave to my children and grandchildren and Maureen Banyard belong solely and absolutely to them and is not to form part of matrimonial assets.” (underlining in original) [5] The list attached to the Will indicates several items to go to Jane, including “Stone Cabin” pen and ink sketch, Chalk on velvet paintings from Nepal, vases owned by Annie Crockett Mitchell, Mother’s drop leaf table, as well as the first choice from among list of items to be allotted by choice. [6] The Respondents, Alfred Smithers and Keith McRae are the Executors and Trustees appointed under J. D.’s Will. The surviving children of J.D., namely Nancy Smithers, Richard Mitchell, Greg Mitchell and Heather Leet also appeared by their counsel. [7] Issue: Do the gifts to Jane under J. D.’s Will lapse because she predeceased him? [8] The Law: The general rule is that where beneficiary or legatee predeceased the testator, the gift will lapse, and will fall into the residue of the estate. will may of course express an alternate gift should this occur. [9] This general statement of law is modified by statute. In particular, the statutory provisions of the Wills Act, R.S.N.S. 1989, c. 505 have application in such an instance. Section 24 provides that “Unless contrary intention appears by the will...”, failed devise of real property passes into the residuary devise under the will. Section 31 of the Wills Act provides for the situation where “close relative” to whom testator has left real or personal property dies within the lifetime of the testator. It states: “Where any person, being child or other issue of the testator to whom any real or personal property is devised or bequeathed for any estate or interest not determinable at or before the death of such person, dies in the lifetime of the testator leaving issue and any such issue of such person are living at the time of the death of the testator, such devise or bequest does not lapse, but takes effect as if the death of such person had happened immediately after the death of the testator, unless contrary intention appears by the will.” (Emphasis added) [10] In considering what is contrary intention expressed in will, the Courts have considered both cases which fall under s. 24 of the Wills Act and s. 31. Feeney states the following: “The legislation makes the general rule that lapsed gift falls into the residue expressly subject to contrary intention. For instance, will may show contrary intention, the effect of which is that the gift does not lapse or go on the testator’s intestacy, but passes according to the contrary intention expressed or implied by the will. class gift always expresses contrary intention. So, in gift of residue “to my nephews,” if one should predecease the testator then his share will not go on the latter’s intestacy. Under the interpretation that regards class gift to such members of the class who actually survive the testator, the dead nephew’s share will go to increase the shares of the nephews who in fact survive the aunt. The result in the case of class gift is the same whether the class gift is one of specific property or one of residue. Normally, gift given to named persons is not class gift and lapsed share thereof, if it is specific property, falls into the residue; if the lapsed share is one of residue, it passes on intestacy. The situation will usually be the same where the testator does not name the persons but mentions their number, because, generally speaking, such gift is not class gift.” (emphasis added) [11] The distinction between class gift and any other gift is an important one in cases of lapse, and it appears that the Courts have found for or against the characterization of gift as class gift depending on the effect such finding will have. For example, the Court may find gift is class gift to prevent lapse. Such cases will be further considered below. [12] Resort must again be made to Feeney: “The general rule concerning the disposition of lapsed gifts does not operate in the case of property given to group of persons (a class), unless the gifts is separate one to each individual, that is to say, gift persona designata. Thus, where there is gift to class and one or more of them predeceased the testator, it is necessary to determine whether it is gift personae designatae or whether it is class gift.....(I)t will suffice here to say that, generally speaking, gift to group of persons whose number is not mentioned or whose members are not named is to be regarded as class gift, while gift to group whose number is given or whose members are named is to be regarded as gift personae designatae. When the testator gives property to persons as class by referring to them by generic expression such as “children”, “nephews” or “nieces”, he is taken to have expressed contrary intention that will preclude the operation of the general rule about lapse should one or more members of the class predecease him” (emphasis added) [13] The provision of Section 31 which prevents lapse in the case of gift to the child or other issue of testator makes it unnecessary to consider whether testator has expressed contrary intention so as to save gift. It provides for what Feeney calls “fictional survival” of the child or other issue. [14] However, the provision itself, is made subject to any contrary intention expressed in the Will by the testator. In other words, the testator may provide that if the child or other issue predecease him, the gift to the child will pass in some other fashion. As Feeney states: “It is relatively easy matter of drafting to expressly provide for contrary intent. Thus the courts ought not to find contrary intent by conjecture or stretched inference, particularly in cases where the wills are prepared by trained persons and there is not clear expression of contrary intent. What constitutes contrary intent is, however, inevitably question of inference.” (emphasis added) [15] The conclusion therefore is that unless the testator provides otherwise, gift to child A, will not lapse. Where the gift is to a “class” of close relatives, e.g. to “children” if this is a “class gift” it does not fall under this statutory exception. In such a case, the gift falls to the surviving members of the class. This was the finding of the Ontario Court of Appeal in Re Guthrie. [16] However, the point made by Smith, J.A., at page 195-6 of that decision is an important one. “.. wish to point out the very material difference that very slight difference in wording of will may make under the rule thus established. If testator by his will makes gift to all his children, naming them, and some of them die in his lifetime, leaving children who survive the testator, the share that those so dying would have taken goes to their representatives under s. 37 of the Wills Act; but, if the gift is to all his children without naming them, all goes to the children of the testator who survive him, and the above section of the Wills Act does not apply. The distinction is founded on the law of lapse. In the former case there is gift to the individual children by name, and there is lapse as to children dying in the testator’s lifetime, whereas in the latter case, as the will speaks from the death of the testator, the gift is to those of the class only who survive him, so that there is no lapse because there was no gift whatever to the children dying in his lifetime.” (emphasis added) [17] We must return therefore to the question of whether the gift is class gift. In referring to the leading case of Kingsbury v. Walter, [1901] A.C. 187, Feeney says: “In the course of the judgments, Lord Davey defined class gift as follows: ‘[P]rima facie class gift is gift to class, consisting of persons who are included and comprehended under some general description and bear certain relation to the testator...it may be none the less class because some of the individuals of the class are named.’ ... The problem is to determine whether the testator was group-minded or individual -minded; whether the property was given to be share by all persons falling within the general or generic description and who are alive at the testator’s death ...; or whether it was given to be share only by individuals answering the general description at the time the testator made his will, so as to exclude anyone not then alive. In the latter case, the gifts are treated as gifts to individuals and, potentially, lapse can apply. As general rule, if the will-maker has named the individuals in the group or has mentioned their number, then prima facie, the gift is not class gift but gift personae designatae. However, as Lord Davey pointed out, gift may still be class gift even though the testator has included or excluded members of the class by name. In Snyder, where the will not only named the members of the class but also mentioned their number, the gift was held to be class gift, at least for the purpose of avoiding lapse. In the Koleniec decision, the court indicated that those cases including class gift with named beneficiaries were limited to instances where the named persons consisted of all the potential members of the class.” (emphasis added) [18] In Re Brush 1942 CanLII 94 (ON SC), [1943] D.L.R. 74 (Ont. H.C.), the testator left all of his real and personal estate “equally among my three daughters -Lina- Mabel and Beatrice”. His will was prepared on printed stationer’s form and he did not insert anything in the clause disposing of the residue. Unfortunately, two of his daughters were witnesses to the Will which made the gifts to them void. The Court concluded that this was not class gift, and Urquhart, J. stated at p. 80: “Having regard to the above authorities it seems to me that the testator in our case in planning his will had not in mind his three daughters as class. If he had, he would have merely said ‘I give....to my daughters ‘share and share alike,’ or something of that sort. In my opinion he had in his mind the three daughters as individuals, and the provision for them is the same as if he had said ‘I give to Lina, Mabel and Beatrice who are my three daughters.’ The case satisfies two of the exceptions to the class rule, namely, that the number of beneficiaries is given and that the names of such are given. [19] In the Nova Scotia case Re Carter Estate (1991), 1991 CanLII 4218 (NS SC), 109 N.S.R. (2d) 384 (T.D.), aff’d (1993), 1993 CanLII 3164 (NS CA), 120 N.S.R. (2d) 259 (C.A.), Davison J. found class gift and noted “There was no reference in the will to the number of (sic) the names of the brothers and reading the whole of the will would suggest the residue was to go to ‘class’.” (emphasis added) Thus he appears to have acknowledged that reference to the names of the brothers in that case would have resulted in different conclusion. [20] In Carter, Davison, J. also cited very useful summary of the law. He noted that the principles used in interpretation of wills were considered by the Appeal Division of this court in Re O’Brien (1978), 25 N.S.R. (2d) 262 at 266 where Cooper, J.A. approved of the rules enunciated by Kelly, J. of the Ontario High Court in Re Kirk (1956), 1956 CanLII 409 (ON SC), D.L.R. (2d) 527 at 528: “In my opinion, the first duty of the Court in construing will is to ascertain the intention of the testator from the language used in the will. The proper procedure is to form an opinion, apart from the cases, and then determine whether the cases require modification of that opinion; the Court should not begin by considering how far the will resembles others on which decisions have been given: Re Blantern, Lowe v. Cooke, [1891] W.N. 54. There are certain rules of construction to which Judge ought to adhere, viz: (1) To read the will without paying attention to legal rules: per Lord Davey in Comiskey v. Bowring-Hanbury, [1905] A.C. 84 at p. 89; (2) to have regard not only to the whole of the clause which is in question, but to the will as whole, which forms the context to the clause: per Lord Birkenhead L.C. in Lucas-Tooth v. Lucas-Tooth, [1921] A.C. 594 at p. 601; (3) to give effect, if possible, to all parts of the will and so to construe the will that every word shall have effect, if some meaning can be given to it and if such meaning is not contrary to some intention plainly expressed in other parts of the will: see 34 Hals., 2nd ed., s. 252, pp. 197 et seq.; (4) when the Judge thus determines the intention of the testator he should inquire whether there is any rule of law which prevents effect being given to it: Hodgson v. Ambrose (1780), Doug. K.B. 337 at p. 342, 99 E.R. 216.” [21] Justice Davison went on to say that he approved of the approach of Mr. Justice Krever in Re Crawley (1976), 1976 CanLII 852 (ON SC), 68 D.L.R. (3d) 193 which was not inconsistent with the previous authority to which he referred. Krever, J. stated at 195: As to the particular language used by the testator, the following propositions are, in my view, so well established that they need no citation of authority to support them: (1) fair and literal meaning should be given to the actual language of the will. (2) An opinion as to the meaning should be formed first without regard to the cases, which should afterwards be looked at to see if modification of the opinion is required. (3) The ordinary and grammatical sense of the words should be assigned. (4) The words should be given the meaning that was intended by the testator, in view of the context and the surrounding circumstances. (5) natural and ordinary meaning should be given in preference to secondary meaning.” [22] What all of the foregoing, including the Carter case supports is that the Will must be considered as whole to determine whether the testator intended class gift. The general approach to interpretation of will was set out by Rutherford, J. in Re Coughlin (1982), 12 E.T.R. 58 (Ont. S.C. (H.C.J.)) as follows: “The starting point, and in sense the sole duty of the Court in construing the wording of will, is to determine the subjective intention of the testator. If the Court is able to deduce the testator's intention from the will, that will prevail. If the court cannot deduce his intention and only if it cannot‑it adopts the so‑called ‘rules of construction’.” (emphasis added) [23] Mason, J. in Re Allan Estate, [1994] A. J. No. 795 at 15‑16 (Surr. Ct.) says: “...the determination of whether or not there has been class gift intended by the testator(rix), the court should have regard to the following: (a) Is there common tie between the members of the group; that is, are they so described or is it clear that there is recognized relationship having regard to the whole of the will? (b) Do the words used illustrate an intention on the part of the testatrix to deal with the members as group, regardless or (sic) whether or not some or all are named, again having regard to the provisions of the Will as whole and to the particular provisions being addressed? (c) Do the words or context including the surrounding circumstances illustrate an intention that if one of the member were to predecease the testator(rix), the surviving members would take his or her share?” [24] If the Court finds that the intention is not clear from the Will and adopts the “rules of construction”, the principle is that “a court must ascertain the ordinary meaning of the words used in light of the surrounding circumstances”. Rutherford, J. in Re Coughlin cites with approval at p. 62 the definition of “surrounding circumstances” set out by Bayda, JA of the Saskatchewan Court of Appeal and states: “... ‘surrounding circumstances’ as used in these reasons refers only to indirect extrinsic evidence. It has no reference whatever to direct extrinsic evidence of intent, the admission of which is governed by different set of conditions. The former consists of such circumstances as the character and occupation of the testator; the amount, extent and condition of this property; the number, identity, and general relationship to the testator of the immediate family and other relative; the persons who comprised his circle of friends, and any other natural objects of his bounty.” The Court must be careful in determining what is relevant to be considered if it becomes necessary to put itself into the "armchair" of the testator. [25] Analysis: I am satisfied that J.D. intended to make a separate bequest to each individual child. He intended to make the gift personae designatae rather than a class gift. am sure that this interpretation is in accord with fair and literal meaning of the actual language of the will. J.D.’s Will does identify the class (i.e. “children”) but he also identifies the members of that class by naming each of his five children. By doing so, he effectively stated that he was leaving his assets to “my child Jane, my child Nancy, my child Heather, my child Richard, and my child Greg. Obviously, the latter method would have been more cumbersome and unnatural method of conveying the same thought. By constructing the clause in the manner he did, J.D. was simply leaving no doubt as to which Jane, Nancy, Heather, Richard or Greg he was referring to. [26] bequest to the named children is in contrast to the gift in the residue clause to “my grandchildren.” The latter is typical class gift as the grandchildren are not named. Only the survivors of that class, or those added (if any) between the making of the Will and J.D.’s death, will inherit. [27] I am unable to discern a “contrary intention” in J.D.’s Will. Counsel have urged me to find that Clause 11 does describe contrary intention. In that clause, J.D. underlined the words “solely and absolutely”. As noted earlier, Clause 11 reads as follows: “11. All of the inheritances which leave to my children and grandchildren and Maureen Banyard belong solely and absolutely to them and is not to form part of matrimonial assets.” [28] The underlining of the two words solely and absolutely and the direction that such inheritances “is not to form part of matrimonial assets”, it is argued, shows that he does not want his property passing outside his bloodline (except to his companion Maureen Banyard). would have to venture into “conjecture or stretched inference” to accept such an argument. It was common ground among counsel that J.D. was familiar with divorce and its consequences regarding matrimonial property. heard evidence that at least two of his children had been divorced. am satisfied that Clause 11 was J.D.’s attempt to avoid such consequences. do not believe that J.D. considered the possibility of child predeceasing him when he wrote Clause 11. Indeed, J.D. did not have such an event in mind when he wrote any part of the Will. Jane’s death was shock. Six weeks later, J.D. was dead. In those circumstances, am not surprised that J.D. did not take immediate steps to redraft his Will. [29] If Jane had survived J.D., she would have inherited her share of his estate “solely and absolutely”. Accordingly, she could have bequeathed her inheritance to her husband, the Applicant, and no one could have taken issue with that. Because of the operation of Section 31, that is exactly the situation which pertains today. Jane’s estate is entitled to her share just as if she had died “immediately after” her father. [30] Conclusion: J.D.’s intention is apparent from the Will itself. There is no need to resort to the rules of construction and assess the words of the Will in light of the surrounding circumstances. would note that, even if had done so, the result would be the same. Jane’s estate is entitled to Jane’s share under J.D.’s Will. [31] The Applicant is entitled to his costs in the amount of $2,500.00 plus reasonable disbursements to be taxed: J.D.’s estate will pay one half of the costs and disbursements. The children and grandchildren represented by Mr. Coles will be jointly and severally responsible to pay the other half. Order accordingly.
The testator had prepared his own Will on a pre-printed form and left his assets to his children, whom he then proceeded to name. One of the children predeceased the testator and an application was made for an interpretation of the Will. the gift to the deceased child did not lapse; her estate is entitled to it. The general rule that a lapsed gift falls into the residue is expressly subject to any contrary intention appearing in the will; a class gift always expresses such a contrary intention. Where the gift is to a class of close relatives (e.g. to children), if this is a class gift it does not fall under this statutory exception. In such a case, the gift falls to the surviving members of the class. This case satisfied two of the exceptions to the class rule, namely, that the number of beneficiaries was given and that the names of such were given. The gift was not a class gift but rather a separate bequest to each individual child and no contrary intention was discernible in the Will.