TAMMY KAVANAGH v. DEREK ROBERT JOHN KAVANAGH, 2016 SKQB 239

QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2016 SKQB 239 Date: 2016 07 06 Docket: QBS 527 of 2014 Judicial Centre: Saskatoon ___________________________________________________________________________ BETWEEN: TAMMY KAVANAGH and DEREK ROBERT JOHN KAVANAGH APPLICANTS - and - DONALD LEE MILLER, in his personal capacity and DONALD LEE MILLER, as Executor for the Estate of Olive Ann Marie Kavanagh RESPONDENTS Counsel: Patrick G. Ennis for the applicants Jason A. Peszko for the respondents ___________________________________________________________________________ DECISION DOVELL J.

July 6, 2016 ___________________________________________________________________________ A. The Application [ 1 ] This is an application pursuant to s. 37 of The Wills Act, 1996 , SS 1996, c W-14.1 [ Act ]. The Applicants, Tammy Kavanagh and Derek Robert John Kavanagh, are the adult children of Olive Ann Marie Kavanagh who died on May 22, 2014. Donald Miller is the former common law spouse of Olive.

He was appointed her Executor by Letters Probate on August 28, 2014 and the sole beneficiary of her estate in accordance with Olive’s Last Will and Testament of April 23, 2009. [ 2 ] Tammy and Derek have brought an application to have a document dated April 2012, signed by Olive declared a testamentary disposition and if determined by the Court to be a testamentary disposition they are asking for two Orders, namely, that the subject matter of the document being 101 Lloyd Crescent, Saskatoon, Saskatchewan be transferred into their names as joint tenants and that they be paid monies by Donald Miller as a rental adjustment from August 2014, the approximate date the property was transferred into Donald’s name, to date. [ 3 ] Although the Court suggested to counsel that this application may be better handled by the Court making an Order for a viva voce hearing of the issue, both counsel agreed that they preferred that the Court determine the threshold issue as to whether or not the document was a testamentary disposition by legal argument in chambers even though the Affidavit evidence before the Court was contradictory and somewhat limited.

As requested by counsel, the Court agreed to determine this application upon the Affidavit materials presently before the Court as well as the legal briefs filed by counsel as opposed to ordering a viva voce hearing. [ 4 ] While both counsel agreed that the document was signed by Olive in April 2012, neither party presented the Court with any evidence other than the document itself as to the circumstances in which the document was made. B. Background [ 5 ] Olive and Donald commenced living common law in 1991 after having had a romantic relationship for a number of years.

Olive had previously been married, and Tammy and Derek are her children from that marriage which ended in separation. There is no evidence before the Court that Olive and her husband, Robert, ever divorced, however, by February 1991 they had been separated for some time and Robert had consulted with a lawyer concerning possibly terminating the marriage. In 1999 Olive’s former husband, Robert, died, resulting in the property in question, 101 Lloyd Crescent, Saskatoon, Saskatchewan, being transferred to Olive as the surviving joint tenant.

Donald and Olive never did live at 101 Lloyd Crescent but lived in Donald’s home which they owned as joint tenants. After being transferred to her in 1999 the property of 101 Lloyd Crescent remained in Olive’s name until her death, she using it as a rental property. [ 6 ] On April 23, 2009, both Donald and Olive executed Wills prepared by a lawyer, Olive appointing Donald as her sole executor and directing that the rest and residue of her estate, including 101 Lloyd Crescent, go to Donald for his own use and enjoyment absolutely if he survived her for thirty days.

There were also provisions in the Will that in the event Donald did not survive her for thirty days the rest and residue of her estate which would have included 101 Lloyd Crescent, Saskatoon, Saskatchewan was to be divided equally between Tammy and Derek. [ 7 ] In 2011 unfortunately Olive was diagnosed with cancer and she died on May 22, 2014. Donald applied for Letters Probate which were granted on August 28, 2014. As he was the sole residual beneficiary of Olive’s estate, title to the property in question was transferred into his name on September 16, 2014.

On May 16, 2016, Tammy and Derek registered a Miscellaneous Interest against title to 101 Lloyd Crescent, Saskatchewan as ISC Interest Register #121572817, “contesting the Will of Olive Ann Marie Kavanagh dated April 23, 2009, wherein this title was devised to Donald Miller”. [ 8 ] Prior to her death Olive wrote two notes that the Court is aware of. Two notes were presented to the Court, both on SGI file memorandum sheets of paper.

Probably on June 7, 2011, she wrote a note regarding the funeral arrangements she wanted and on April 2012, she wrote the following note: April 2012 Don Miller 101 Lloyd Cres House and property to be divided up between Derek Kavanagh and Tammy Kavanagh as they see fit. Copies Derek Kavanagh Tammy Kavanagh “Olive Kavanagh”

[9] It is the April 2012 note of Olive’s that is the subject matter of this application. Both notes were found by Donald in Olive’s personal effects and provided by him to her family members beforeher death. There is no question that Donald has been nothing other than transparent with Tammy and Derek about the document of April 2012 since he found it. C. Issues to be determined by the Court[10] Is the April 2012 document concerning 101 Lloyd Crescent a testamentary disposition and if so should the Orders being requested by the Applicants be granted? D.

Relevant Legislation - The Wills Act, 1996, SS 1996, c W-14.1 amended by SS 2001, c 51[11] The following are the relevant sections of the Act that are applicable to this application:8 A holograph will, wholly in the handwriting of the testator and signed by him or her, may be made without any further formality or any requirement as to the presence of or attestation or signature by a witness.… 16 No will or any part of a will is revoked other than: (

a) in accordance with

section 17; (

b) by another will executed in accordance with this Act; (

c) by some writing declaring an intention to revoke the will or part of the will and executed in accordance with this Act; or (

d) by burning, tearing or otherwise destroying the will or part of the will by the testator, or by some person in his or her presence and by his or her direction, with the intention of revoking it. … 37 The court may, notwithstanding that a document or writing was not executed in compliance with all the formal requirements imposed by this Act, order that the document or writing be fully effective as though it had been properly executed as the will of the deceased or as the revocation, alteration or revival of the will of the deceased or of the testamentary intention embodied in that other document, where a court, on application is satisfied that the document or writing embodies: (

a) the testamentary intentions of a deceased; or (

b) the intention of a deceased to revoke, alter or revive a will of the deceased or the testamentary intentions of the deceased embodied in a document other than a will. E.

Positions of the Parties The Applicants[12] It is the position of the Applicants, Tammy Kavanagh and Derek Robert John Kavanagh, that the April 2012 document is clearly a holograph Will pursuant to s. 8 of Act and as a valid testamentarydisposition the Registrar of the Land Titles should be directed to transfer title to the subject property from Donald Miller into the names of Tammy and Derek and that there should be a rental adjustment in their favour asat August 2014.

The Respondent[13] It is the position of the Respondent, Donald Miller, that the document dated April 2012, signed by Olive is not a valid testamentary disposition as it does not meet the legal test of a testamentarydisposition and thus should not be admitted for probate. Accordingly, the application of the Applicants should be dismissed, the Miscellaneous Interest registered on the property on May 16, 2016 should be immediatelyvacated and he should be awarded costs F.

Analysis[14] Counsel for the Applicants argued that the document of April 2012 on SGI file memorandum was totally in Olive’s handwriting and accordingly it was a holograph Will pursuant to s. 8 of the Actand thus a testamentary disposition. There was no requirement for the Will to be dated or to state that any previous Will was to be revoked or that it was made in contemplation of her death. Upon a plain reading thedocument was a testamentary disposition directing that 101 Lloyd Crescent in Saskatoon was to be divided between Derek and Tammy Kavanagh.

There was no need to speculate to reach such a conclusion the Applicants’counsel argued.[15] The Court has concluded it is not quite that simple. There is more to consider than a document being totally in the handwriting of the individual. People make notes and lists all the time. Justbecause a note is made about an individual’s asset and names of individuals it is to go to does not mean that the note is a testamentary disposition.

The note may simply be that - a note.[16] But what is the significance of the document dated April 2012 in Olive’s handwriting and signed by her?[17] As our Court determined in Holyk Estate (Re) (1992), (SK SU), 103 Sask R 1 (QB), in refusing an application to have a handwritten document submitted for probate at paras 3 to6:[3] In the text Williams on Wills, Vol. 1, 5th Ed., at p. 76, it states “A holograph will is not testamentary unless it contains a fixed, final and deliberate expression of the intention as to the disposal of property ondeath”. This proposition has been upheld in many cases including White v.

Pollok (1882), 7 App. Cas. 400; Castle v. Toree II Moo. P.C. 133; Re Gray, (SCC), [1958] S.C.R. 392; The Canada PermanentTrust Company v. Bowman, (SCC), [1962] S.C.R. 711.[4] While there is a presumption of validity with respect to a holograph will, (see Currie v. Potter, (MB KB), [1981] 6 W.W.R. 377 (Man. Q.B.), it is also equally clear the holograph will must fulfillcertain requirements.[5] The foremost of these requirements would seem to be that the document must indicate a deliberate, fixed and final intention to dispose of the testator’s property at his death.

In the present document nowhere doesthe author indicate that the document written is a will or is meant to operate upon his death. The document, in fact, merely lists a number of names and prices of property and, as well, seems to indicate some desire to makea gift of some of the property in question. Nowhere is there any mention of a will nor in an intention for the gifts to operate upon the author’s death.[6] In addition, the document appears to be vague in nature.

While there is a presumption of validity and a duty upon the court to attempt to fulfill the wishes of the deceased, there is also a requirement with respect toal wills, including holograph wills, that the requests given are sufficiently clear to allow the court some certainty with respect to their

interpretation. The document in the present case fails to provide that necessarycertainty.[18] Likewise, in this case the document dated April 2012, signed by Olive does not indicate that it is a Will or a Codicil or an addition or change of any kind to her formal and probated Last Will andTestament of April 23, 2009. Nor is there any mention of a deliberate, fixed and final intention to dispose of 101 Lloyd Crescent to Derek and Tammy upon her death. The words “101 Lloyd Cres House and property to bedivided up between Derek Kavanagh and Tammy Kavanagh as they see fit” are wide open for vast different

interpretations. In addition, the document is very vague in that while it is specific to 101 Lloyd Cres, what does“101 Lloyd Cres House and property” mean? As well, how is “to be divided as they see fit” to be interpreted? That is not a disposition but a deputization.[19] There are just too many deficiencies within the April 2012 document for a determination to be made that it is a testamentary disposition. The document is vague and uncertain in many ways andthe document does not possess the required testamentary intention to be declared a testamentary disposition.

While the Court might be tempted to speculate or manufacture a Will which it considers more fair andappropriate than the end result of this application, that is not good enough and the Court is prohibited from doing so.[20] Our Court of Appeal has recently dealt with s. 37 of the Act in Oh v Robinson, 2011 SKQB 200, 374 Sask R 175. At para 27 it states:27 It is apparent that although the powers under s. 37 of the Act are broad, the Court must ensure that the documents and language used disclose a cogent, coherent testamentary intent.

The Court cannot speculate on thetestamentary intention or manufacture a will which it considers appropriate. As stated by Baynton J. in Archer Estate, 2005 SKQB 118, 15 E.T.R. (3d) 165 at paras. … 12:…12 I conclude that neither writing is sufficiently cogent to enable the Court to determine what, if any, testamentary intentions the deceased might have had. As well, in order to place any reliance upon the writings, theCourt would have to conclude that the deceased intended to change, not just extend, the provisions of his will. Fortunately, the will is coherent and can be readily interpreted.

It should not be modified on the basis ofspeculation respecting subsequent incoherent writings. ... [21] Likewise, in this case Olive’s April 23, 2009 Last Will and Testament is coherent and can be readily interpreted.

The Court has concluded that it should not be modified on the basis of speculationrespecting the subsequent document of April 2012 on SGI file memorandum indicating:101 Lloyd Cres House and property to be divided up between Derek Kavanagh and Tammy Kavanagh as they see fit.[22] As previously stated, people make notes and lists all the time without the intention that the note or list is to be a testamentary disposition. The Court is not prepared to conclude that the documentdated April 2012, in Olive’s handwriting and signed by her meets the test of a testamentary disposition. G.

Conclusion[23] For all the reasons as set out in this written decision the Application of the Applicants is dismissed as the Applicants have not discharged the burden of proving the produced document istestamentary in nature and intends to amend the April 23, 2009 Last Will and Testament of Olive.

The evidence before the Court of Olive’s testamentary intentions within the document is not substantial, complete andclear as is the requirement for a testamentary disposition.[24] As a result of this Decision the Miscellaneous Interest registered on the title of 101 Lloyd Crescent, Saskatoon, Saskatchewan, being Surface Parcel #118195353, Reference Land Description: Lot37 Blk/Par 711 Plan No. 73S18694 Extension 0 as described on Certificate of Title 99SA11471, being Interest #121572817 shall be immediately vacated by the Registrar of Land Titles Registry.[25] In the event the Respondent wishes to pursue his costs of this application arrangements are to be made with the Local Registrar for a conference call to be held in that regard.

As his counsel

indicated to the Court, he still regards the Applicants as family and under the unfortunate circumstances of this case including the present health issues the parties are facing I leave it up to Donald Miller as to whether he decides to pursue his costs of this application. [ 26 ] Rule 10-4 of The Queen’s Bench Rules is waived. J. M.L. DOVELL