Howell v. Howell Date:, 1999 BCCA 371

Citation: Howell v. Howell Date: 19990610 1999 BCCA 371 Docket: CA024425 Registry: Vancouver COURT OF APPEAL FOR BRITISH COLUMBIA ORAL REASONS FOR JUDGMENT : Before: THE HONOURABLE MR. JUSTICE CUMMING June 10, 1999 THE HONOURABLE MR. JUSTICE DONALD THE HONOURABLE MADAM JUSTICE NEWBURY Vancouver, B.C. BETWEEN: WARREN HOWELL PLAINTIFF (RESPONDENT) AND: LEE GEOFFREY HOWELL, Executor of the Will of DONALD HERBERT HOWELL, Deceased RONALD GRAHAM HOWELL DEFENDANTS (APPELLANTS) Lee Geoffrey Howell Appearing on his own behalf

Peter V. Minten Counsel for the Respondent [ 1 ] NEWBURY, J.A. This appeal concerns the construction of the last will and testament of the deceased Donald Herbert Howell dated June 10, 1995. The problem posed by this will clearly illustrates why persons making their wills should seek professional legal advice rather than rely on lay persons or manuals prepared by lay persons. [ 2 ] The deceased's last will provided in the two operative paragraphs as follows: 4.

If my wife, Amelia Margaret Howell, survives me for a period of thirty (30) days then notwithstanding anything elsewhere to the contrary in this my Will provided, but not otherwise, I GIVE all my real and personal property of every nature and kind whatsoever and wheresoever situate to my wife for her own use absolutely. 5.

Subject to paragraph 4 herein, I GIVE, DEVISE AND BEQUEATH all my property of every nature and kind whatsoever and wheresoever situate, including any property over which I may have a general power of appointment to my said Trustee upon the following trust. (a)To divide the articles of personal, domestic and household use or ornament among my children RONALD GRAHAM HOWELL and LEE GEOFFREY HOWELL alive at the time of my death, in equal parts, share and share alike. (b)To use his discretion in the realization of my estate with power to my Trustee, except as hereinafter specifically set forth, to sell, call in and convert to money any part of my estate not consisting of money at such time or times, in such manner and upon such terms, and either for cash or credit or for

part cash and

part credit or for

part cash and

part credit as my Trustee may in his uncontrolled discretion decide upon, or to postpone such conversion of my estate or any part or parts thereof for such length of time as he may think best, and I hereby declare that my said Trustee may retain any portion of my estate in the form in which it may be at my death (notwithstanding that it may not be in the form of an investment in which Trustees are authorized to invest funds, and whether or not there is a liability attached to any such portion of my estate) for such length as my Trustee may in his discretion deem advisable and my Trustee shall not be held responsible for any loss that may happen to my estate by reason of his so doing. (c)I DIRECT my Trustee to pay out of the capital of my general estate my just debts, funeral and testamentary expenses and all succession duties and inheritance and death taxes. [Emphasis added] Obviously, the deceased intended that provided his wife survived him, she would inherit all of his estate, except (and here another difficulty arises in that paragraph 5 is said to be "subject to" paragraph 4) that the deceased's articles of personal, domestic and household use or ornament were to be divided between Ronald and Lee Geoffrey Howell in equal shares. [ 3 ] Unfortunately, Mrs.

Howell predeceased her husband, with the result that paragraph 5 of the will became the only operative one.

Lee Howell, the named executor, took out letters probate in August 1997 and takes the position that the effect of paragraph 5 was to leave the entire estate in equal shares to himself and his brother Ronald. [ 4 ] However, the plaintiff Warren Howell, the child of the deceased by a previous marriage that lasted only three years, brought these proceedings seeking an order revoking the grant of letters probate and declaring that the residue was to be distributed in accordance with s. 84 of the Estate Administration Act .

Section 84 provides that: 84 If an intestate dies leaving issue, subject to the rights of the spouse, if any, the person's estate must be distributed per stirpes among the issue.

[ 5 ] There is evidence to the effect that Warren Howell had little contact with his father, especially after he obtained the age of majority. The testator's marriage to Amelia Margaret Howell lasted 47 years, and Mr. Howell was age 84 when he died in June 1997. [ 6 ] The matter came on before Mr. Justice Blair in Chambers, who recited the relevant paragraphs of the will and the basic facts of the relationship between Warren Howell, the defendants and the deceased. He noted the argument of the executor Lee Howell, who had prepared the Will at his parents' request, and who is not legally trained. Mr.

Howell adapted the terms of the will from a "software program" and from the will of a client. (He is a "money manager".) His father's instructions, he says, were that if his wife predeceased him, his entire estate was to go to the defendants, that is himself and Ronald Howell. [ 7 ] The defendants relied strongly on the well-known presumption against intestacy and argued that the deceased had intended to exclude Warren Howell from benefiting from his estate and had made express statements to that effect. However, the Chambers judge concluded: I conclude that paragraph 5(

a) is not sufficiently wide to cover the residue. The gift to the defendants is restricted and does not cover the whole of the residue of the estate. There is a previous reference as to the estate and what was to happen to it in paragraph 4 and there, the Testator clearly has stated "I give all my real and personal property of every nature and kind whatsoever and wheresoever situate to my wife for her own use absolutely." That is not the wording that is used in 5(a). 5(

a) has very restricted wording. I cannot extend it to cover the residue. Nor am I prepared to accede to the defendants' submissions that I should go beyond the 1995 will to preclude the participation of the plaintiff, Warren Howell. The will has not addressed the residue.

There is an intestacy and the residue will be divided equally pursuant to the Estate Administration Act , and that is equally between the deceased's three sons, Lee, Ronald and Warren. [ 8 ] The defendants contend that the Chambers judge erred in failing to give effect to the presumption against intestacy and in failing to put himself in the "testator's armchair". They say it is not logical or indeed conceivable that the testator signed a will without intending to dispose of all his property.

In this regard, we have been referred to various cases, and the factum of the appellant referred to the following passage from Oosterhoff on Wills and Succession (4th ed): If a will is fairly capable of two

interpretations, one resulting in some or all of the property being incompletely disposed of and the other completely disposing of all of the testator's property, it is presumed that the testator intended to dispose of his or her entire estate and did not intend to die intestate in respect of the whole or any part of the estate.

The presumption is especially strong if the testator has purported to dispose of all his or her property. [ Re MacDonald (1982), 1982 CanLII 1844 (ON CA) , 35 O.R. (2d) 578 , 11 E.T.R. 52 , 133 D.L.R. (3d) 128 (C.A.) at pp. 57-58 ] ... when a testator has executed a will in solemn form you must assume that he did not intend to make it a solemn farce - that he did not intend to die intestate when he has gone through the form of making a will. You ought if possible to read the will so as to lead to a testacy, not an intestacy. This is a golden rule. [Re Harrison; Turner v.

Hellard (1885), 30 Ch.D. 390 (C.A.) at p. 393, per Lord Esher, M.R.] [ 9 ] We were also referred to the position of this Court in Re: McEwan Estate 1967 CanLII 553 (BC CA) , [1967] 62 W.W.R. 277 (B.C.C.A.) , where at 283, Mr. Justice Tysoe said: ...

The avoidance of intestacy is not enough to induce the court to give an unnatural meaning to words or to construe plain words otherwise than according to their plain meaning. [ 10 ] I agree it is very unlikely the testator in this case intended not to leave his entire estate; however, the fact is that he failed to make provision for his assets (other than personal effects) in the event that his wife predeceased him. It is one thing to try to give effect to a testator's intention where he has used an ambiguous word or phrase — it is entirely another thing to supply a missing bequest out of thin air.

No authority was cited for the proposition that the court can do so or that it can ignore perfectly clear language in order to avoid an intestacy. In the result, I am not persuaded that the Chambers judge made any error whatsoever in his reasoning, and I would dismiss the appeal. [ 11 ] CUMMING, J.A. I agree.

[ 12 ] DONALD, J.A. I agree. [ 13 ] CUMMING, J.A. The appeal is dismissed. "The Honourable Madam Justice Newbury"