All About Estates

Where’s There is a Will (and a Clear One), There is a Way!

In Campbell v Evert 2018 ONSC 593, the deceased had, in the decade prior to her passing, transferred to Mr. Evert (one of the “kids”) the family cottage valued at $145,000. In her will later that year,  she made a specific bequest of $145,000 to Ms. Campbell, the other “kid’, which was consistent with the value of the cottage at that time.

Several years later and prior to her passing, the deceased entered into an inter vivos family trust with respect to part of her accumulated assets. The family trust provided that upon her death, Ms. Campbell was to receive the sum of $150,000, and the balance of the trust assets divided equally between the children. Subsequent to death, the assets of the family trust were fully distributed in accordance with the terms of the trust, including the $150,000 payment to Ms. Campbell.

The balance of the deceased’s estate amounted to approximately $190,000. Ms. Campbell sought an order directing distribution of those assets in accordance with her mom’s will. From the estate assets available for distribution, Ms. Campbell would receive the specific bequest of $145,000. The balance would be divided between the children. According to Ms. Campbell, the terms of the will are clear and unambiguous. There was no legal basis of any other result.

Mr. Evert’s position was that Ms. Campbell was not entitled to receive the specific bequest of $145,000. According to Mr. Evert, the deceased estate should be divided equally between them. Mr. Campbell did not dispute his mom’s testamentary capacity nor the validity of the will or the family trust. However, Mr. Campbell believed it was his mom’s intention that Ms. Campbell receive the $150,000 initial payment under the family trust instead of the $145,000 specific bequest in the will. Ms. Campbell was not entitled to both payments, according to him. To support that position, Mr. Evert sought to rely on extrinsic evidence of his mom’s intentions, as well as case law relating to disposition of property under a will when the testator has made lifetime gifts to the beneficiaries named in the will. Specifically, he was asking the Court to consider whether his mom’s a gift during her lifetime to a named beneficiary of the will should be treated as an advance payment of the beneficiary’s inheritance.

The court found in Ms. Campbell’s favour.

In its judgment, the Court relied on the general common-law rule that in interpreting a will, the Court must determine the testator’s intention from the words used in the will and not from direct extrinsic evidence of intent. The Court noted that there were no issues raised by the parties over the specific wording of the will, in the form of omissions or errors. The Court further noted that the deceased had ample occasion to revoke or modify her will according to her wishes for reasonable period after the trust agreement was completed.

From the language of the trust agreement, the Court found nothing to indicate that the deceased intended the $150,000 initial payment to Ms. Campbell under the trust agreement upon death would be in place of the $145,000 special bequest under the will. As well, the will was never amended to eliminate the special bequest. The extrinsic evidence that Mr. Evert sought to rely on constituted direct evidence of the deceased’s intention: As such, it was not admissible to displace her intention as determined by the clear language of the trust agreement.

In essence, through her words, the Court allowed the deceased to speak for herself.

Happy Reading

About Steven Frye
Baker Tilly WM LLP is a leading, independent audit, tax, and business advisory firm based in Vancouver and Toronto, serving clients across Canada. Drawing on well-trained teams across a variety of disciplines, we ensure the alignment of our professional’s skills and experience with client requirements, resulting in exceptional service and business outcomes.


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