In VanSickle Estate v. VanSickle, 2022 ONCA 643, the Court of Appeal for Ontario considered the presumption that a Will is to be interpreted as if it had been written immediately prior to the death of the testator.

Dorothy VanSickle died in 2019 at the age of 95. She was survived by six children.  Dorothy and her husband had worked as school custodians, and operated a 66.54 acre hobby farm to supplement their income. The farm operation at one time included livestock, but this ceased in 1992.

Dorothy made a Will in 1985, in which she gave her eldest child, Howard, an option to purchase “the farming business carried on by me” in Brantford for $83,000. By 1985, four of Dorothy’s youngest children had moved away and were not involved in the farm. However, Howard was 40 years old at the time, and working on the farm. After Dorothy’s husband died in 1994,  she began renting the farmland to Howard, pursuant to a series of two-year leases, which she continued to do until her death.

Howard initially tended cash crops and then began subleasing the fields to other farmers. In certain years, he shared some of his extra profits with Dorothy. Dorothy continued to live at the farm until 2017, when she moved into a retirement home. Dorothy claimed farming income on her tax return.

After her death, four of Dorothy’s children argued that Dorothy had ceased carrying on the farming business many years prior to her death such that the option to purchase had lapsed. Howard disagreed. An application was therefore commenced to interpret the Will.

The application judge held that “the farming business carried on by me” in the Will referred to the active farming business involving the cultivation of crops and/or raising livestock for commercial sale and profit that Dorothy carried on for many years with her husband prior to making her Will. The farming business did not include the rental of the farmland. As such, the farming business had ceased by Dorothy’s death and the option to purchase had therefore lapsed. Howard appealed.

The standard of review applicable to a judge’s interpretation of a Will is the same as of a contract. The judge’s findings are of mixed fact and law and entitled to deference on appeal, absent an extricable error of law or palpable and overriding error.

The Court of Appeal for Ontario held that the application judge made an extricable error in failing to apply the presumption in s.22 of the Succession Law Reform Act, R.S.O. 1990, c. S.26, which states that “[e]xcept when a contrary intention appears by the will, a will speaks and takes effect as if it had been made immediately before the death of the testator with respect to… the property of the testator.”

The Court of Appeal determined that Dorothy was still carrying on a farm business on the land at issue and had not left it unproductive. It was leased out to be farmed on a commercial basis, she received income from the lease, and on occasion, a share in the profits, and declared the income on her tax return. Moreover, there was nothing in the Will to displace the presumption that the Will speaks at the time of death. There was nothing in the phrase “the farming business carried on by me” that pointed clearly to the business carried on by Dorothy in 1985, rather than the business as it was in 2019, when she died. There was nothing in the surrounding circumstances to suggest that Dorothy’s intention was to offer Howard the option to purchase the family farm, so that he could continue farming it, but only if she was still involved in the day to day operations.

The appeal was allowed and the judgment was set aside. Howard was entitled to exercise his option to purchase under the Will.

The Court of Appeal did ponder whether Dorothy intended to benefit Howard as much as she did, noting that the Will provided a mechanism to lower the option price if the farmland decreased in value, but not if it appreciated in value, which was the case. Perhaps Dorothy had not foreseen economic changes that would have resulted in the significant gap between Howard’s entitlement and that of his siblings. However, despite the passage of 34 years, Dorothy never chose to amend her Will, and it was not the Court’s role to address any inequities in her decision.

This case serves as a reminder to review your estate plans every few years to consider not only life changes that may impact your testamentary wishes, but also whether the value of your assets has increased (or decreased) such that their disposition in your Will not longer reflects your present intentions.