Re Walpole,

• Date: 07 June 1947
• Docket Number: Case No. 100
• Court: Superior Court of Justice of Ontario (Canada)

Canada, Ontario High Court.

(Gale, J.)

Case No. 100

Re Walpole.

Conclusiveness of Statements of the Executive — Termination of Hostilities — Canada.

War — Termination of Hostilities — Certificate of Department of External Affairs, Canada — Evidence — Construction of Will — Law of Ontario.

The Facts.—By Clause 2 (h) of her will dated September 27, 1944, the testatrix disposed of the residue of her estate as follows:

“… in trust until the termination of the hostilities in which Canada is now engaged …; should my son be alive at the termination of the said hostilities, to give him all that remains of my property at that time; in the event of the death of my son before the termination of the said hostilities, to pay … and divide … the then remainder among certain specified persons.”

The testatrix died on April 16, 1945, and after the unconditional surrender of Japan on August 14, 1945, the son named in the will claimed the residue of the estate. The alternative residuary beneficiaries contended that there had not been a cessation of hostilities and the son was not yet entitled to the residue. Application was made to the Court asking for a declaration as to the disposal of the residue.

Held: that the phrase “termination of hostilities” in the will must be interpreted as meaning the date upon which organized fighting between the forces of Canada and her enemies came to an end, and that, therefore, the son was entitled as at August 14, 1945, the date of the unconditional surrender of Japan. The Court said:

“Mr. Weir, counsel for the executors, sought assistance by communicating with the Department of External Affairs for Canada, and in the correspondence which ensued the Acting Under-Secretary of State for External Affairs took the position that: ‘The state of war between Canada and the enemy powers exists to-day de facto and de jure. Actual hostilities between Canada and the last of the belligerents ceased on the 14th August when Japan surrendered unconditionally. However, there has been no official declaration concerning the actual cessation of hostilities.’ The Department has evinced considerable interest in the outcome of this motion, but it should be pointed out that I am merely interpreting the will of the testatrix and in doing so I am concerned only with what is meant by the words which she used in the paragraph under consideration. This judgment cannot have any wide application.

“I have no hesitation in holding that the testatrix intended that her son Frederick Kenneth Walpole should be entitled to the residue of her estate upon the unconditional surrender of Germany or Japan, whichever should be last. At that moment actual fighting, to all intents and purposes, was...