Rondel v Robinson Estate & ors [2011] ONCA 493 (CanLII)

In the matter of: THE ESTATE OF BLANCA ESTHER ROBINSON, DECEASED

DR RICHARD RONDEL

V

1. SHELDON NORMAN SILVERMAN

2. ESTATE TRUSTEE OF THE ESTATE OF BLANCA ESTHER ROBINSON (DECEASED)

3. DOUGLAS SHAWN ROBINSON

4. KELLY ANNE ROBINSON

5. JOHN ROBINSON

6.FRANK MELO

7. TERESA FERNANDES MELO

8. ITZIAR FERNANDEZ

9. MARIA PILAR HURTADO

10. COVADONGA FERNANDEZ

Analysis

Blanca Robinson, the testator (T), owned property in Spain, England and Canada. She executed a will in 2002 intended to deal only with her European property (the 2002 Spanish will). By this she granted a life interest in her London flat to Dr Richard Rondel, the Appellant (A), with whom she had a long relationship and made it clear she had made another will dealing with her property outside Europe. In 2005, T sent her lawyer drafting instructions regarding a Canadian will (the 2005 Canadian will). The instructions related to the ‘entire residue of [her] estate’. Her lawyer, Mr Silverman (B) drafted the will according to the instructions, but did not inquire as to T’s previous wills, the location of her assets or her significant relationships. The 2005 Canadian will included a general disposition clause and a standard revocation clause, which revoked all previous wills. B reviewed the will, clause by clause, with T prior to its execution. In 2006, T revised the 2005 Canadian will to make a bequest of $1m to A (the 2006 Canadian will); no further amendments were made. When T died, B, who was unaware of the 2002 Spanish will or T’s European assets, distributed the Canadian assets according to the 2006 will. B subsequently learned of the 2002 Spanish will and the European assets when he was advised that the English court would not admit it to probate or would only do so if the 2006 Canadian will was rectified to make it clear that the 2002 Spanish will had not been revoked. This led to the applications brought by A and B for the interpretation and rectification of the 2006 Canadian will, which had already been probated. The first application was brought by B as the estate trustee for advice and direction regarding the interpretation of the 2006 Canadian will. The second application, supported by B, was brought by A for an order setting aside the grant of probate and rectifying the 2006 Canadian will by deleting the revocation clause. For the requested relief to be effective, A and B also require the phrase ‘other than property dealt with by my Spanish will dated June 7 2002’ to be added to the general disposition clause. Both applications were supported by affidavit evidence from A, B and a long-term friend of T’s as to T’s intention that the 2006 Canadian will would deal only with her Canadian property and was not intended to revoke the 2002 Spanish will. The judge, after reviewing the common law position on the rectification of wills, dismissed the applications. To allow the applications would give the court the power to intervene and rectify an unambiguous will that had been reviewed and approved by the testator on the basis of third-party affidavit evidence that the testator did not mean what she said. This would be a significant change in the law.

Held:

Appeal dismissed [39]. The judge was correct to find that the affidavit evidence as to the testator’s true testamentary intentions was not admissible. The general common law rule was that the testator’s intentions must be determined on the basis of the words in the will rather than direct extrinsic evidence of intent [23]. While extrinsic evidence related to the circumstances of the testator and the making of the will may be admissible, the affidavit evidence filed in support of the applications exceeded the scope of admissible evidence. Rather, it purported to directly address what she intended to include in her will but did not actually include. The evidence was conclusory in nature. Allowing such evidence would introduce uncertainty and increase estate litigation. Disappointed beneficiaries could challenge a will based on the belief that the testator’s intentions were different to those expressed in the will. To admit this evidence, other than in circumstances where there was an equivocation in a will, would raise issues of credibility and reliability. In this case, the words of the 2006 Canadian will were clear.

JUDGMENT RG JURIANSZ JA: Overview [1] In this appeal, the appellant and Mr Silverman ask the court to reconsider the common law position in Canada on the admissibility of direct extrinsic evidence of a testator’s intention in the face of an unambiguous will. There were two applications brought before the application judge. The first application …
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Counsel Details

Timothy G Youdan (Davies Ward Phillips & Vineberg LLP, 100 King Street West, 44th Floor, Toronto, ON M5X 1B1, tel +1 416 367 6904, email tyoudan@dwpv.com) and Nadia M Harasymowycz (Hull & Hull LLP, 141 Adelaide Street West, Suite 1700, Toronto, ON M5H 3L5, tel +1 416 369 1140) for Dr Richard Rondel.

Archie J Rabinowitz (Fraser Milner Casgrain LLP, 77 King Street West, Suite 400, Toronto-Dominion Centre, Toronto, ON M5K 0A1, tel +1 416 863 4664, email archie.rabinowitz@fmc-law.com) and Angela Casey (deVries Litigation, The Lumsden Building, 6 Adelaide Street East, Suite 1000, Toronto, ON M5C 1H6, tel +1 416 640 2754, email info@devrieslitigation.com) for Sheldon Norman Silverman.

Derek Jackson (Legal Research, 1044 Oliver Street, Victoria, BC V8S 4W7, tel +1 888 875 4785, email research@derekjackson.ca) for Kelly Anne Robinson.

Cases Referenced

  • Furfaro v Furfaro (1986) 22 ETR 241
  • Haidl v Sacher (1979) 7 ETR 1 (Sask CA)
  • Marks v Marks (1908) 40 SCR 210
  • Re Bruce Estate (1998) 24 ETR (2d) 44 (YTSC)
  • Re Kaptyn Estate (2010) 60 ETR (3d) 74
  • Reishiska v Cody (1967) 62 WWR 581 (Sask CA)