Rondel v. Robinson Estate,

• Jurisdiction: Ontario
• Judge: Rosenberg, Feldman and Juriansz, JJ.A.
• Neutral Citation: 2011 ONCA 493
• Citation: (2011), 282 O.A.C. 189 (CA),2011 ONCA 493,106 OR (3d) 321,337 DLR (4th) 193,[2011] OJ No 3084 (QL),282 OAC 189,[2011] O.J. No 3084 (QL),(2011), 282 OAC 189 (CA),106 O.R. (3d) 321,337 D.L.R. (4th) 193,282 O.A.C. 189
• Date: 03 February 2011
• Court: Court of Appeal (Ontario)

Robinson Estate, Re (2011), 282 O.A.C. 189 (CA)

MLB headnote and full text

Temp. Cite: [2011] O.A.C. TBEd. JL.014

Dr. Richard Rondel (applicant/appellant) v. Sheldon Norman Silverman, Estate Trustee of the Estate of Blanca Esther Robinson, deceased, Douglas Shawn Robinson, Kelly Anne Robinson, John Robinson, Frank Melo, Teresa Fernandes Melo, Itziar Fernandez, Maria Pilar Hurtado and Covadonga Fernandez (respondents/respondents)

In the Matter of the Estate of Blanca Esther Robinson, Deceased

Sheldon Norman Silverman, Estate Trustee of the Estate of Blanca Esther Robinson, deceased (applicant/respondent) v. Dr. Richard Rondel, Douglas Shawn Robinson, Kelly Anne Robinson, John Robinson, Frank Melo, Teresa Fernandes Melo, Itziar Fernandez, Maria Pilar Hurtado and Covadonga Fernandez (respondents/appellant, Dr. Richard Rondel and respondents)

(C52441; 2011 ONCA 493)

Indexed As: Robinson Estate, Re

Ontario Court of Appeal

Rosenberg, Feldman and Juriansz, JJ.A.

July 6, 2011.

Summary:

Robinson owned property in Spain, England and Canada. In a will executed in Spain, she made clear that the Spanish Will would deal with her European property and her Canadian Will would deal with her Canadian property. Several years later, knowing she had a short time to live, she asked her Canadian solicitor to revise her Canadian Will. The solicitor prepared the revised will and routinely added a clause revoking all prior wills. The solicitor did not know about and the testator did not mention the existence of the Spanish Will. The testator approved and signed the Canadian Will. After she died, the solicitor for the first time learned about the Spanish Will. The estate trustee sought for advice and direction regarding the interpretation of the Canadian Will and, in particular, the interpretation of the revocation clause. A beneficiary, Rondel, sought an order setting aside the grant of probate and rectifying the 2006 Canadian Will by deleting the revocation clause.

The Ontario Superior Court, in a decision reported at [2010] O.T.C. Uned. 3484, dismissed the applications. Rondel and the estate trustee appealed. The issue was whether the application judge erred by holding that the affidavit evidence tendered by Rondel and the estate trustee regarding Robinson's testamentary intentions was not admissible to interpret the 2006 Canadian Will.

The Ontario Court of Appeal dismissed the appeal. The application judge correctly found that the third party affidavit evidence directed to establish Robinson's true testamentary intentions was inadmissible.

Wills - Topic 8546

Evidence and proof - Extrinsic evidence - Of intention of testator - Robinson owned property in Spain, England and Canada - In a will executed in Spain, she made clear that the Spanish Will would deal with her European property and her Canadian Will would deal with her Canadian property - Several years later, knowing she had a short time to live, she asked her Canadian solicitor to revise her Canadian Will - The solicitor prepared the revised will and routinely added a clause revoking all prior wills - The solicitor did not know about and Robinson did not mention the existence of the Spanish Will - The testator approved and signed the Canadian Will - An application judge held that the 2006 Canadian Will could not be rectified and that the revocation clause could not be deleted - A beneficiary, Rondel, and the estate trustee appealed - The issue was whether the application judge erred by holding that the affidavit evidence tendered by Rondel and the estate trustee regarding Robinson's testamentary intentions was not admissible to interpret the unambiguous 2006 Canadian Will - The Ontario Court of Appeal dismissed the appeal - The application judge correctly found that the third party affidavit evidence directed to establish Robinson's true testamentary intentions was inadmissible - It went beyond attempting to establish the facts and circumstances surrounding the 2006 Canadian Will - Rather, it purported to directly address what she intended to include in her Will but did not include - The evidence was conclusory in nature - There would be much uncertainty and estate litigation if disappointed beneficiaries like Rondel could challenge a will based on their belief that the testator had different intentions than those manifested in the will - See paragraphs 19 to 27.

Wills - Topic 8546

Evidence and proof - Extrinsic evidence - Of intention of testator - The Ontario Court of Appeal stated that the fundamental purpose of the law of wills was to give effect to the testamentary intentions of the testator for the distribution of her estate - The general rule of the common law was that in construing 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 law properly regarded the direct evidence of third parties about the testator's intentions to be inadmissible - The evidence of disappointed beneficiaries and other third parties was simply not as probative of testators' intentions as their own clear and unambiguous expressions in the will - Departing from the well-established general exclusionary rule would not lead to a more faithful implementation of testators' true intentions - It would, however, lead to increased litigation - See paragraphs 23, 27 and 35.

Wills - Topic 8546

Evidence and proof - Extrinsic evidence - Of intention of testator - The Ontario Court of Appeal stated that there was no question about the "good sense" of the common law rule excluding direct extrinsic evidence of a testator's intent - A testator of sound mind knew her intentions and was able to express them - The very raison d'être of a written will, formally executed, was to record the testator's own expression of intentions - The formalities required for the proper execution of the will advanced that goal by confirming that the will provided an accurate record of those intentions - Third-party evidence of a testator's intentions gave rise to both reliability and credibility issues - Credibility was a concern because would-be beneficiaries could, without fear of contradiction by the deceased, exaggerate their relationship and fabricate the promises of requests - Reliability was a concern because testators were not obliged to write their wills to accord with the "sincere or mendacious assurances" they might have given to those close to them - The evidence of third parties, who could not directly discern the mind of the testator, was logically incapable of directly proving the testator's intent - See paragraphs 36 to 38.

Cases Noticed:

Haidl v. Sacher (1979), 2 Sask.R. 93; 106 D.L.R.(3d) 360 (C.A.), refd to. [para. 24].

Marks v. Marks (1908), 40 S.C.R. 210, refd to. [para. 24].

Furfaro v. Furfaro, [1986] O.J. No. 280 (S.C.), leave to appeal refused [1986] O.J. No. 889 (C.A.), refd to. [para. 24].

Reishiska v. Cody, 1967 CarswellSask 97 (C.A.), refd to. [para. 28].

Bruce Estate, Re (1998), 24 E.T.R.(2d) 44 (Y.T.S.C.), refd to. [para. 30].

Kaptyn Estate, Re, [2010] O.T.C. Uned. 4293; 102 O.R.(3d) 1 (Sup. Ct.), refd to. [para. 35].

Authors and Works Noticed:

Feeney, Thomas G., The Canadian Law of Wills (2nd Ed. 1982), vol. 2, p. 56 [para. 29].

Counsel:

Timothy G. Youdan and Nadia M. Harasymowycz, for Dr. Richard Rondel;

Archie J. Rabinowitz and Angela Casey, for Sheldon Norman Silverman;

Derek Jackson, for Kelly Anne Robinson.

This appeal was heard on February 3, 2011, by Rosenberg, Feldman and Juriansz, JJ.A., of the Ontario Court of Appeal. Juriansz, J.A., delivered the following reasons for judgment of the court on July 6, 2011.