GLENDON GILCHRIST as EXECUTOR of the ESTATE OF DAWN JACQUELINE GILCHRIST APPLICANT - v. –, 2023 SKKB 187

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 187 Date: 2023 09 06 Docket: KBG-SA-00616-2023 Judicial Centre: Saskatoon BETWEEN: GLENDON GILCHRIST as EXECUTOR of the ESTATE OF DAWN JACQUELINE GILCHRIST APPLICANT - and – WILLIAM GILCHRIST RESPONDENT Counsel: Randy T. Klein, K.C. for the applicant Robert G. Kennedy, K.C. for the respondent ___________________________________________________________________________ FIAT CURRIE J.

September 6, 2023 ___________________________________________________________________________ Introduction [ 1 ] Glendon Gilchrist is executor of the estate of Dawn Jacqueline Gilchrist. As executor, he applies for an order that the residue of the estate be divided equally between him and Lorraine Gilchrist, with no part going to William Gilchrist. [ 2 ] All of the people involved share the same surname, and so I will refer to them by their first names. Dawn, Glendon, Lorraine and William are siblings, being the children of John and Elsie Gilchrist.

In the mid-1990s William was convicted of having indecently assaulted Dawn, while she was a minor, over several years covering 1972 to 1981. He denied then, and he denies now, that he indecently assaulted Dawn. [ 3 ] On March 8, 1991 Dawn executed a will. It had been prepared by a Saskatoon lawyer, who was one of the witnesses to its execution. In her will Dawn provided specific bequests to Glendon and Lorraine, and she provided that the residue of her estate would go to her parents. William is not among the beneficiaries named in the will. [ 4 ] Dawn’s father, John, died on May 19, 1995.

Dawn’s mother, Elsie, died on December 9, 2016. [ 5 ] Dawn did not amend her will or replace it with another at any time after executing her will in 1991. It is undisputed that when she died on August 18, 2022 her gift of the residue of her estate to her parents lapsed, as both parents had

predeceased her. There being no other provision in the will relating to the residue, subject to my ruling here the residue falls under the provisions of s. 13 of The Intestate Succession Act, 2019 , SS 2019, c I-13.2 : 13 Any portion of an estate that is not disposed of by will shall be distributed as though the testator died intestate and left no other estate. [ 6 ] Section 8(2) of that Act operates so that the residue of Dawn’s estate would be distributed to her siblings, namely Glendon, Lorraine and William: 8

(1) If an intestate died leaving no spouse or descendant, the estate shall be distributed in equal shares to: (

a) the intestate’s parents; or (

b) the surviving parents if any parent has predeceased the intestate.

(2) If there is no surviving parent of the intestate, the estate shall be distributed per stirpes among the descendants of the parents. [ 7 ] Glendon asserts, though, that Dawn did not want any part of her estate to go to William. He points to the sexual assault conviction. Furthermore, there is no dispute that Dawn had no contact with William during her adult life.

Glendon, who relates that he and Dawn were close throughout their lives, reports that Dawn conducted herself as though William did not exist. [ 8 ] As to Dawn not dealing with her will since 1991, Lorraine advises that when Dawn was in the hospital in the days before she died she and Lorraine discussed the prospect of Dawn amending her will to reflect the fact that their parents already had died. Lorraine says that on August 17, 2022 Dawn asked her to have a lawyer come to the hospital so that Dawn could amend her will to leave her estate to Glendon and Lorraine.

Lorraine arranged for a lawyer to attend at the hospital on August 18, 2022, but Dawn died in the early morning of that day. [ 9 ] Lorraine adds that “It was clear from my discussions with Dawn that she had no idea that any law existed that could cause part of her estate to go to William because her parents were named in the Will and were deceased.” [ 10 ] In these circumstances, Glendon applies for the court’s direction.

Specifically, he asks the court to apply the “armchair rule” to ascertain Dawn’s testamentary intention and, on that basis, to rule that the residue of the estate will be distributed to only Glendon and Lorraine, with none of it going to William. Glendon asserts that it would be contrary to Dawn’s testamentary intention for any part of her estate to go to William.

Provisions of the Will [ 11 ] The relevant provisions of Dawn’s will are as follows: I, DAWN JACQUELINE GILCHRIST, of the City of Saskatoon, in the Province of Saskatchewan, publish and declare this to be and contain my Last Will and Testament. … I NOMINATE, CONSTITUTE AND APPOINT my brother, GLENDON THOMAS GILCHRIST, of the City of Saskatoon, in the Province of Saskatchewan, to be the Executor and Trustee (hereinafter referred to as my Trustee) of this my Last Will and Testament.

I GIVE, DEVISE AND BEQUEATH all my estate both real and personal, of whatsoever kind and wheresoever situate, and also any property over which I may have any power of appointment to my Trustee to hold the same on the following trusts: … (

c) To transfer and deliver to my brother, GLENDON THOMAS GILCHRIST, the sum of Twenty Thousand ($20,000.00) Dollars for his own use and benefit absolutely; (

d) To transfer and deliver to LORRAINE SANDRA GILCHRIST, the sum of Twenty Thousand ($20,000.00) Dollars for her own use and benefit absolutely; (

e) To transfer and deliver my remaining assets and property to my parents, JOHN SINCLAIR GILCHRIST and ELSIE MARION GILCHRIST in equal shares for their own use and benefit absolutely. … The Armchair Rule [ 12 ] Where a will is unambiguous, routinely courts interpret the will without reference to any other information. The absence of ambiguity means that there is no need to go beyond the testator’s written words to ascertain and implement the testator’s testamentary intention. Justice Ball discussed

interpretation of a will in Ellingson v Ellingson , 2017 SKQB 14 at para 20 , 23 ETR (4th) 221 : 20 The court's only objective in interpreting a will is to ascertain and give effect to the intention of the testator, as expressed by the language of the will, at the time the will was executed. In Markowsky v Markowsky , 2014 SKQB 261 , 453 Sask R 220 , Tholl J.

summarized the principles as follows: 11 [4] The primary principle of

interpretation of a will requires a court interpreting the will to determine the meaning of any impugnedor ambiguous terms by identifying the intentions of the testator. This principle is set out by the Saskatchewan Court of Appeal in Haidl v.Sacher (1979), (SK CA), 2 Sask. R. 93, 106 D.L.R. (3d) 360 (C.A.), at para. 17, ... 12 [5] This principle was expanded upon by the Saskatchewan Court of Appeal in Jessop Estate, Re (1987), (SKCA), 55 Sask. R. 18, [1987] S.J. No. 57 (QL) (C.A.) at para. 8, as follows: 8. Before embarking on his

interpretation the learned trial judge correctly referred himself to the principles to beapplied in interpreting a will: The duty of the Court in construing a will was set out by Lamont, J., in Smith v. Chatham Home of the Friendless, (SCC), [1932] S.C.R. 713, [1932] 4 D.L.R. 173, where at p. 716 he stated: In construing a will the duty of the court is to ascertain the intention of the testator, which intention is to be collected from the whole willtaken together.

Every word is to be given its natural and ordinary meaning and, if technical words are used, they are to be construed intheir technical sense, unless from a consideration of the whole will it is evident that the testator intended otherwise. … [13] For situations where a will provision is ambiguous, courts have developed rules of

interpretation. Such rulesrequire a court to determine the circumstances surrounding the testator’s execution of the will, in order to ascertain the testator’stestamentary intention and thus to interpret the ambiguity in the will.

At para. 20 Justice Ball continued the above excerpt from JusticeTholl’s remarks as follows: And at p. 719 Lamont, J., stated: In construing the language of the testator where it is ambiguous, we are entitled to consider not only the provisions of the will, but alsothe circumstances surrounding and known to the testator at the time when he made the will, and adopt the meaning most intelligible andreasonable as being his intention. … [14] This approach to interpreting a will is known as the armchair rule, by which a court “sits in the armchair of thetestator”, inferring the testator’s intention from the surrounding circumstances and then using that inference to interpret the will.

At para.20 Justice Ball further quoted from Justice Tholl’s

summary as follows: In Perrin v. Morgan, [1943] 112 L.J. Ch. 81, at p. 83; [1943] A.C. 399, at p. 406; [1943] All E.R. 187, at p. 190, the Lord Chancellor,Viscount Simon, stated: The fundamental rule in construing the language of a will is to put upon the words used the meaning which, having regard to the terms ofthe will, the testator intended. The question is not, of course, what the testator meant to do when he made his will, but what the writtenwords he uses mean in the particular case - what are the "expressed intentions" of the testator. At pp. 91-92 of the Perrin v.

Morgan decision, supra, Lord Romer said: I take it to be a cardinal rule of construction that a will should be so construed as to give effect to the intention of the testator, suchintention being gathered from the language of the will read in the light of the circumstances in which the will was made. In order tounderstand the language employed the Court is entitled, to use a familiar expression, to sit in the testator's armchair.

When seated there,however, the Court is not entitled to make a fresh will for the testator merely because it strongly suspects that the testator did not meanwhat he has plainly said. … [15] As Justice Belobaba put it in Resnick v McGuire (2007), 39 ETR (3d) 298 (QL) (Ont Sup Ct) at para 22: 22 It is settled law that when a court interprets a will, it must determine the testator's intention at the time that she made her will. Thecourt must use common sense, giving the words their ordinary meaning in an attempt to achieve, from the wording of the will, the resultthat the testator intended.

Only when the testator's intention cannot be arrived at by this method should the court resort to the judiciallydeveloped rules of construction, such as the so-called "armchair rule." When the testator's intention cannot be ascertained from the plainmeaning of the words used in the will, the court can sit in the "testator's armchair", assume the knowledge she had of the extent of herassets, the size and makeup of her family and her relationship to its members, so far as such things can be ascertained by the evidence,and in this way, determine and give effect to the testator's intention: Dobson Estate v.

Dobson, [2000] O.J. No. 552 (S.C.J.) at paras. 7-8; Matzelle Estate v. Father Bernard Prince Society of the Precious Blood, [1996] O.J. No. 5107 (Gen. Div.) at paras. 17 and 21. [16] As noted in the above decisions, application of the armchair rule typically requires the existence of an ambiguityin the will – an ambiguity that leaves the court needing more insight into the testator’s testamentary intention. This is because anabsence of ambiguity typically means that there is no need for further insight into the testator’s testamentary intention.

As Justice Ballsaid in Ellingson at para 22: If the testator’s intentions are clear from the words used in the will, there will be no need to apply rules of construction. … [17] Here Glendon asserts that the judicial approach to the armchair rule has evolved. No longer is the armchair rulerestricted to cases of ambiguity, he says. He points to the decision of the Ontario Court of Appeal in Ross v Canada Trust Co., 2021

ONCA 161, 458 DLR (4th) 39, in asserting that the armchair rule now can and should be used to ascertain the testator’s testamentaryintention – and to interpret the will accordingly – even where there is no ambiguity in the will. Glendon cites the remarks of JusticeBrown in Ross at paras 40-41: 40 In the past, courts usually have resorted to the "armchair rule" where the testator's intention cannot be ascertained from the plainmeaning of the will's language: Dice v.

Dice Estate, 2012 ONCA 468, 111 O.R. (3d) 407, at para. 37. 41 More recently, courts are treating the "armchair rule" as an over-arching framework within which a judge applies the various toolsfor will construction at his or her disposal. As put by the Court of Appeal of Manitoba in Zindler [2015 MBCA 33, 319 Man R (2d) 16],at para. 14: Feeney’s [Canadian Law of Wills] concludes that “the most recent trend in Canadian cases seems to indicate that evidence ofsurrounding circumstances should be taken into account in all cases before a court reaches any final determination of the meaning ofwords” (at para. 10.54).

This is true even if the words, themselves, do not appear to be ambiguous or unclear… [Emphasis added] [18] This broader approach to the armchair rule, Glendon asserts, is consistent with the overarching task of a court“to ascertain and give effect to the intention of the testator”, as Justice Ball put it in Ellingson. [19] Glendon argues that the armchair rule must be applied here so that Dawn’s intention, that none of her estatewould go to William, will be implemented.

Effect on The Intestate Succession Act, 2019 [20] William asserts that Glendon essentially is asking the court to overrule the Legislature by cancelling theoperation of The Intestate Succession Act, 2019, which already has been triggered to determine how the residue of Dawn’s estate is to bedistributed. [21] I do not accept William’s assertion. Glendon is not asking the court to affect the operation of the Act. Rather, heis asking the court to interpret the will so that there are alternate residual beneficiaries, as a consequence of which no intestacy exists andthe application of the Act is not triggered.

Testamentary Intention: Actual or Hypothetical [22] A prominent theme, common to all of the court decisions that address the application of the armchair rule, isthis: each judicial pronouncement of the availability of the armchair rule refers to needing and using the rule for

interpretation of thewords used by the testator in the will. I refer, by way of demonstration, to the following excerpts from the decisions referred to above: The court's only objective in interpreting a will is to ascertain and give effect to the intention of the testator, as expressed by the languageof the will, at the time the will was executed. … (Ellingson, para 20) In construing a will the duty of the court is to ascertain the intention of the testator, which intention is to be collected from the whole willtaken together.

Every word is to be given its natural and ordinary meaning … (Smith v Chatham Home of the Friendless, (SCC), [1932] SCR 713, quoted in Ellingson, para 20) The fundamental rule in construing the language of a will is to put upon the words used the meaning which, having regard to the terms ofthe will, the testator intended. … (Perrin v Morgan, quoted in Ellingson, para 20) … The court must use common sense, giving the words their ordinary meaning in an attempt to achieve, from the wording of the will,the result that the testator intended.

Only when the testator's intention cannot be arrived at by this method should the court resort to thejudicially developed rules of construction, such as the so-called "armchair rule."… (Resnick, para 22) … “… evidence of surrounding circumstances should be taken into account in all cases before a court reaches any final determination ofthe meaning of words" (at para. 10.54).

This is true even if the words, themselves, do not appear to be ambiguous or unclear... (Ian Hulland Suzana Popovic-Montag, Feeney’s Canadian Law of Wills, 4th ed (Toronto: LexisNexis, 2020) quoted in Ross, para 41) [Emphasis added] [23] This theme highlights the nature of the

interpretation that Glendon asks the court to adopt. Glendon is not askingthe court to determine the meaning of the words used by Dawn in her will. He is not asking the court to resolve an ambiguity in Dawn’swords. He is not asking the court to interpret her words at all. Rather, he is asking the court to insert new words into the will, to create anew will provision. [24] Specifically, Glendon is not asking the court to ascertain what Dawn meant in writing her will. Rather, he isasking the court to ascertain what Dawn would have meant if she had turned her mind to the prospect of her parents dying before shedied.

Thus, he is asking the court to ascertain not what her testamentary intention actually was, but what her testamentary intentionwould have been. Rather than asking the court to ascertain Dawn’s actual testamentary intention, Glendon is asking the court to identifya hypothetical testamentary intention. [25] That is not the task of the court.

The task of the court, as described by Justice Ball in Ellingson, is “to ascertainand give effect to the intention of the testator, as expressed by the language of the will, at the time the will was executed.” It is a matterof ascertaining the testator’s actual intention, not a matter of hypothesizing as to what the testator would have intended had she turned hermind to a particular circumstance.

[ 26 ] On March 8, 1991 Dawn did not turn her mind to the prospect of her parents dying before she died, and so when she executed her will on that day she had no testamentary intention in that regard. There is no testamentary intention, relating to an alternate residual beneficiary, for the court to ascertain. [ 27 ] In support of his application, Glendon asks me to rule as the Ontario Superior Court of Justice ruled in Frohlich Estate v Wedekind , 2012 ONSC 3775 .

In that case, after reviewing the evolution of the use of the armchair rule, Justice Gunsolus said at para. 21: 21 The court finds that the intent of the deceased would have been that the lapsed gift be shared among her surviving, specifically named, residuary beneficiaries, with whom she shared a special relationship. [Emphasis added] [ 28 ] Glendon accurately identifies Frohlich as a case in which the court determined what would have been the testator’s testamentary intention if she had turned her mind to a particular circumstance, and if she then had addressed that circumstance in her will.

With respect, though, I am not persuaded that the armchair rule has evolved to empower a court to do so. [ 29 ] The objective of the armchair rule remains the ascertaining of the meaning of the words that a testator has written in the will. [ 30 ] Glendon further argues that, by designating her parents as residual beneficiaries, Dawn clearly indicated an intention not to create an intestacy. He cites decisions in which courts have confirmed the preference to interpret a will so as to avoid finding an intestacy.

He offers this circumstance as another reason for interpreting Dawn’s will to include the designation of Glendon and Lorraine as alternate residual beneficiaries. [ 31 ] I do not conclude, however, that Dawn executed a will that created an intestacy. The will, when she executed it, disposed of the entirety of her estate. The intestacy arose through the passage of time when named beneficiaries died – an occurrence that is not rare.

Furthermore, if the preference for avoiding an intestacy were to motivate me to find alternate residual beneficiaries, finding those beneficiaries would require me to apply the armchair rule. As I have explained, application of the armchair rule is limited, and I am not persuaded that the preference for avoiding an intestacy outweighs that limitation. [ 32 ] Even if I were persuaded to take the broader view of the armchair rule, doing so would lead me to attempt to ascertain who Dawn, in March 1991, would have intended to name as an alternate residual beneficiary.

There is evidence before me that would support the conclusion that, in August 2022, Dawn intended to name Glendon and Lorraine as residual beneficiaries. The evidence that is before me, though, is not sufficient to support the conclusion that on March 8, 1991 Dawn would have intended to name Glendon and Lorraine as residual beneficiaries. While they were named beneficiaries of specific bequests at that time, there may have been others in Dawn’s life in 1991 that she would have considered as residual beneficiaries.

The evidence does not establish who, if anyone, Dawn would have chosen as an alternate residual beneficiary in 1991. [ 33 ] Therefore, even if I were persuaded to take the broader approach and attempt to ascertain who Dawn would have intended to name as alternate residual beneficiaries, I would not succeed in that attempt. There being no identified residual beneficiaries, the residue still would fall under the provisions of The Intestate Succession Act, 2019 . Costs [ 34 ] Justice Ball said in Ellingson at para 119 : 119 The general rule of costs in estate litigation involving the

interpretation of wills is that the parties' costs are to be paid out of the estate. This approach ensures that the will is interpreted in a manner that accurately reflects the intention of the testator. It was articulated and applied by Matheson J. in Landsall v Lysyshyn (1998), 170 Sask R 272 at para 38 (Sask QB) : 38 It is the rule, rather than the exception, to permit legal costs incurred in resolving disputes regarding the administration of estates to be recovered from the estate, particularly when a dispute arises from an

interpretation of the testator's intention. But that is not the basis of the dispute in this instance. Nevertheless, a significant item involved in the dispute related to the amount of the executors' fee. [ 35 ] The application here arose from the circumstances. It was appropriate for Glendon as executor to bring this application, even though ultimately he was unsuccessful. This was an issue that had to be resolved by the court. That being the case, it is appropriate for the estate to pay the solicitor and client costs of this application of each party. Conclusion [ 36 ] The application is dismissed.

Each party will have the solicitor and client costs of this application from the estate. ______________________________J. G.M. CURRIE