Beaton v. McNaughton, (2009) 241 Man.R.(2d) 58 (QB)

• Judge: Clearwater, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: May 22, 2009
• Jurisdiction: Manitoba
• Citations: (2009), 241 Man.R.(2d) 58 (QB);2009 MBQB 140

Beaton v. McNaughton (2009), 241 Man.R.(2d) 58 (QB)

MLB headnote and full text

Temp. Cite: [2009] Man.R.(2d) TBEd. JN.003

Lorne Beaton, as Executor of the Estate of Gordon Austin Wittick (applicant) v. Cameron McNaughton, as Executor of the Estate of Ethel Williams, Lorne Beaton and Douglas Allan Beaton, as Executors of the Estate of Iris Beaton, Alvin Taylor, Mary Ellen Burville, Jean Gordon, Ross Taylor, Edwin Taylor, Eveyln Bullock, Lorraine Slotuik, Donald Taylor, Allan Wittick and Dean Wittick, as potential beneficiaries of the Estate of Gordon Austin Wittick (respondents)

(PR 06-01-73158; 2009 MBQB 140)

Indexed As: Beaton v. McNaughton et al.

Manitoba Court of Queen's Bench

Winnipeg Centre

Clearwater, J.

May 22, 2009.

Summary:

The deceased left a 2002 Will which effectively disposed of the residue of his estate to his two surviving sisters (Ethel and Iris, both since deceased), and a 2004 Codicil which left his estate to be divided, 'according to the law all my brothers and sisters to share'. His sister, Fern, was survived by eight children. His brother, Stewart, was survived by two sons. The executor sought direction under s. 84 of the Trustee Act.

The Manitoba Court of Queen's Bench concluded that the entire residue should be divided as follows: (a) 25% to Ethel's estate; (b) 25% to Iris' estate; (c) 25% divided equally between Fern's children; and (d) 25% divided equally between Stewart's children. The testator intended the entire residue to be distributed as if s. 25.2 (anti-lapse provision) of the Wills Act applied; i.e., the nephews and nieces were entitled to the share that their respective parent would have received.

Editor's Note: Shortly before the making of the Codicil, the deceased was a party to similar litigation concerning the estate of his deceased brother, Eric Wittick, Winnipeg Centre File No. PR 98-01-46701.

Devolution of Estates - Topic 405

Devolution - General - Intestacy v. inclusion in residue - [See Wills - Topic 4041 ].

Executors and Administrators - Topic 384

Appointment, qualification and tenure - Removal and suspension - Conflict of interest - The applicant sought direction under s. 84 of the Trustee Act - The applicant was also the executor of the deceased's estate - He and his brother were the surviving children of the deceased's sister, Iris - Counsel for the applicant (as executor) was a member of the same firm as counsel for the Taylor respondents (the eight children of the deceased's sister, Fern) - Those counsel took a common position as to the distribution of the residue of the estate, effectively advocating a position which was contrary to the position of the Wittick respondents (the two children of the deceased's brother, Stewart) - The Manitoba Court of Queen's Bench repeated what it said in Re Sparks Estate (1993): "... It is not the preferable practice for a person to remain as an administratrix or executrix (or other form of trustee) when he or she advances a claim against trust property or urges an interpretation of the trust document which would benefit him or her to the possible detriment of other parties. ..." - See paragraph 6.

Executors and Administrators - Topic 655

Appointment, qualification and tenure - Administrators - Removal - Conflict of interest - [See Executors and Administrators - Topic 384 ].

Wills - Topic 23

Testamentary instruments - Codicils - Testamentary intention - [See Wills - Topic 7684 ].

Wills - Topic 4041

Failure of gifts - Lapse - General - The Manitoba Court of Queen's Bench discussed the following common law exceptions which applied in cases where a gift would otherwise lapse - "(a) where there is a joint tenancy - the doctrine of lapse has been held to have no application where there is a gift or bequest to persons in a joint tenancy. If one of the owners predeceases, his share of the property goes to the surviving owner by right of survivorship ... (b) a class gift - by making a class gift a testator will be taken to have expressed a 'contrary intention' that will preclude the operation of the general rule of lapse ... In the result, if a member of the class dies, it is treated similarly to the treatment afforded a joint gift. The share of the deceased class member does not fall into residue and does not pass on an intestacy; it goes to increase the share of those class members who have survived; (c) fulfillment of a legal or moral duty (an exception clearly not applicable in this case); and (d) secret and half trusts (again, an exception clearly not applicable in this case). Sections 25.1 and 25.2 of the Wills Act (sometimes referred to as the 'anti-lapse provisions') are two additional statutory exceptions to the common law lapse rule" - See paragraphs 8 and 9.

Wills - Topic 4068

Failure of gifts - Lapse - Death of legatee - Statutory regulation - The testator had six siblings, namely: (a) two sisters, Ethel and Iris, who survived him but subsequently died; (b) a sister, Fern, who predeceased him and was survived by eight children; (c) two brothers who predeceased him; and (d) a brother, Stewart, who also predeceased him, and was survived by two sons - Under the deceased's Will, only if Ethel and Iris predeceased him would his nephews and nieces living at the date of his death inherit the residue of his estate, to be shared equally - The issues arose from the wording of the Codicil: "I want my will to be changed so my estate will be divided according to the law all my brothers & sisters to share" - The executor sought direction under s. 84 of the Trustee Act - He submitted, as did eight of the deceased's nephews and nieces, that there was no residuary clause in the Codicil; that there was therefore an intestacy as to 50% of the residue and that this portion was to be distributed pursuant to ss. 4(4), 5(1) and 5(2) of the Intestate Succession Act - The Manitoba Court of Queen's Bench disagreed - Section 25.2 of the Wills Act (anti-lapse provision) had to be considered - The deceased wanted the residue of his estate distributed as if s. 25.2 applied (as he believed it did) - The words he chose to express that intention in his Codicil were not so uncertain that his intention should not be honoured - See paragraphs 17 to 26.

Wills - Topic 4071

Failure of gifts - Lapse - Death of legatee - Residuary bequests - [See Wills - Topic 4068 ].

Wills - Topic 5000

Construction - General - General principles - Ascertainment of intention of testator - In determining whether the Codicil in this case was a residuary clause and replaced the residuary clause in the deceased's Will, the Manitoba Court of Queen's Bench examined the application of the ordinary meaning rule in the framework most often adopted by the courts; i.e., it first applied the objective meaning, and only then turned to the circumstances of the case to see if they warranted giving the ordinary meaning a secondary/extended meaning - The court noted that, ordinarily, direct evidence of intention, as was contained in an affidavit, was generally inadmissible, but that there was at least one exception to that rule; namely, in the case of an equivocation, such that there were two equally reasonable interpretations - This case was a situation where the court would apply the armchair rule - If the will, read in the light of the surrounding circumstances, failed to identify the donee of property, and there was no equivocation (direct evidence of intention may be admitted), then the gift was void for uncertainty - The court concluded that it should make all reasonable efforts to determine the subjective intent of the testator and take reasonable steps to avoid conclusions of uncertainty or intestacy when it was reasonably certain that a testator knew what he wanted done and took steps to prepare a will or codicil - See paragraphs 21 to 24.

Wills - Topic 5012

Construction - General - General principles - Effect of codicil - [See Wills - Topic 7684 ].

Wills - Topic 5183

Construction - General - Evidence and proof - Intention of testator - The Manitoba Court of Queen's Bench concluded that there was an equivocation arising from a literal interpretation of the Codicil in this case - The testator had decided to make a significant change to the residuary clause in his Will and to provide, in the Codicil, benefits to some of his nephew and nieces if his two sisters continued to survive him - Having used the words "according to the law", the balance of the language in the Codicil, absent extrinsic evidence as to his intentions, created some uncertainty - After confirming the principles or rules to be applied in construing a Will or codicil, the court stated that "[f]ortunately ... the standard of proof is the civil standard (on balance). In a proceeding such as this, I do not consider there to be any specific onus of proof on any particular party" - Here, there was hearsay evidence to establish the testator's intention (necessity and reliability were satisfied) - See paragraphs 24 and 25.

Wills - Topic 5184

Construction - General - Evidence and proof - Armchair rule - [See Wills - Topic 5000 ].

Wills - Topic 5185

Construction - General - Evidence and proof - Burden of proof where testator's intention determined - [See Wills - Topic 5183 ].

Wills - Topic 7684

Construction - Quantity of interest taken - Residue - What constitutes a residuary disposition - The deceased's Will provided for an equal share to all surviving nephews and nieces if both of his surviving sisters predeceased him - The Codicil provided "my estate will be divided according to the law all my brothers & sisters to share" - A literal interpretation would result in an intestacy with respect to 50% of the residue - There was uncontradicted affidavit evidence of the deceased's intentions when he wrote the Codicil - The Manitoba Court of Queen's Bench disagreed with the submissions that the Codicil was not a residuary clause - The Codicil replaced the residuary clause in the Will - The deceased clearly intended to change the disposition of the residue of his estate - It was equally clear that he wanted to benefit at least some of his nephews and nieces - The court's primary function was to ascertain the subjective intent of the testator - Resort to the intestate legislation should only take place when there was no (or insufficient) evidence to establish the intention - Here, there was evidence (hearsay) and it was admissible ("necessity and reliability" were satisfied) - The testator intended the entire residue of his estate to be distributed as if s. 25.2 of the Wills Act applied; i.e., the nephews and nieces were entitled to the share that their respective parent would have received - See paragraphs 17 to 27.

Wills - Topic 7690

Construction - Quantity of interest taken - Residue - Determination of interest or share of survivor of one of several residuary legatees - [See Wills - Topic 7684 ].

Wills - Topic 8546

Evidence and proof - Extrinsic evidence - Of intention of testator - [See Wills - Topic 5183 ].

Cases Noticed:

Sparks Estate, Re (1993), 91 Man.R.(2d) 52 (Q.B.), refd to. [para. 6].

Sparks Estate, Re (1994), 95 Man.R.(2d) 181; 70 W.A.C. 181 (C.A.), dist. [para. 17].

Statutes Noticed:

Intestate Succession Act, S.M. 1989-90, c. 43; C.C.S.M., c. I-85, sect. 4(1), sect. 4(4), sect. 5(1)(a), sect. 5(1)(b), sect. 5(2) [para. 5].

Wills Act, R.S.M. 1988, c. W-150; C.C.S.M., c. W-150, sect. 25, sect. 25.2(a), sect. 25.2(b), sect. 25.3 [para. 4].

Authors and Works Noticed:

Feeney, Thomas G., The Canadian Law of Wills (4th Ed. 2000) (2004 Looseleaf Update), generally [para. 19]; §§ 10.1, 10.24 [para. 20]; 10.29 [para. 22]; 11.51 [para. 21]; 11.53 [para. 23]; 11.85, 11.86 [para. 24]; 11.103 [para. 25].

Manitoba, Law Reform Commission, Report on Intestate Succession (1985), Recommendation 8 [para. 26].

Counsel:

Derek Alexander, for the applicant;

Chris W. Fulmyk, for the respondents, Allan Wittick and Dean Wittick;

Roland Rivalin, Q.C., for the respondents, Alvin Taylor, Mary Ellen Burville, Jean Gordon, Ross Taylor, Edwin Taylor, Evelyn Bullock, Lorraine Slotuik and Donald Taylor;

No appearance by the respondent, Cameron McNaughton, Executor of the Estate of Ethel Williams, or by Douglas Allan Beaton, one of the Executors of the Estate of Iris Beaton.

This application was heard by Clearwater, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following judgment on May 22, 2009.