2012 SKQB 493, 2012 SKQB 493

QUEEN ’ S BENCH FOR SASKATCHEWAN Citation: 2012 SKQB 493 Date: 2012 11 23 Docket: SUR 285 of 2009 Judicial Centre: Regina IN THE ESTATE OF JOAN PATRICIA AGNES HEATON, DECEASED NO. 98 (R. 698) Appearing: B. Stratton , Q.C. for the CIBC Trust Corporation S. McLellan for the Saskatchewan Lawyers Insurance Association K. Selzer for beneficiary, by telephone J. Smith for beneficiary, by telephone JUDGMENT KEENE J.

November 23, 2012 RELIEF REQUESTED [ 1 ] The executor and trustee, CIBC Trust Corporation, brings this application by way of originating notice for advice and direction of this Court regarding this estate; specifically asking for the following relief: ... a. The Estate must be distributed in accordance with the Last Will and Testament dated June 8, 1999 (the “ Will ” ) of Joan Patricia

a. The Estate must be distributed in accordance with the Last Will and Testament dated June 8, 1999 (the “ Will ” ) of Joan Patricia Agnes Heaton (the “ Deceased ” ), using either extrinsic evidence or the Intestate Succession Act regarding the unallocated final ten percent of the residue; b. Executor and Trustee fees must be set both for the administration of the estate and the additional time spent and expenses incurred in relation to a Court Application arising out of drafting errors and omissions; and c.

Costs for the Applicant in bringing this application should be paid by the lawyer who drafted the Will or alternatively be paid out of the Estate. BACKGROUND [ 2 ] Joan Patricia Agnes Heaton retained the legal services of a lawyer to prepare her will. Ms. Heaton provided her lawyer with a written memo setting out her intention and desire to benefit a number of what I will call charities or worthwhile community organizations. For these purposes, the part of the memo that I will attempt to reproduce is as follows: ... 20% Museums of Southern Sask.

Willow Bunch Museum phone 473-2806 8 5 th St E Wood Mountain Rodeo Ranch Museum phone 266-4953 Regional Park Cannington Manor Historic Park Rusty Relics Museum Carlyle 453-2266 Le Beau Village Museum St. Victor 642-3118 ... [ 3 ] It is to be noted the Cannington Manor Historic Park and Rusty Relics Museum Carlyle are clearly separated and not conjoined in any fashion in Ms.

Heaton ’ s handwritten memorandum. [ 4 ] Unfortunately (as conceded, it appears, by the lawyer who drafted the will) the will was typed in error and indicated at p. 3: ... • 10% equally amongst the following museums of southern Saskatchewan: - WILLOW BUNCH MUSEUM , Willow Bunch, Saskatchewan, telephone 473-2806 - WOOD MOUNTAIN RODEO RANCH MUSEUM , Regional Park, Wood Mountain, Saskatchewan, telephone 266-4953 - CANNINGTON MANOR HISTORIC PARK, RUSTY RELICS MUSEUM , Carlyle, Saskatchewan, telephone 453-2266, in loving memory of my father Philip Hartley Heaton ; - LE BEAU VILLAGE MUSEUM , St.

Victor, Saskatchewan, telephone 642-3118 for their sole benefit absolutely. ... [emphasis in original] [ 5 ] The above was not only 10% light (should have been 20%) but co-mingled Cannington Manor Park with Rusty Relics

Museum. [6] Counsel for the executor has contacted all the potential beneficiaries who could take a share of the estate if the 10% that isunaccounted for fell into intestacy. It appears consensus was not reached amongst this group. [7] During the course of her presentation, counsel on behalf of the executor agreed that the issue regarding the executor’srequest for enhanced fees caused by the error in the drafting should be adjourned sine die.

Accordingly, I adjourn that portion of theapplication sine die upon three day’s notice. [8] In regards to the issue of costs, the solicitor for the executor suggested that costs should be paid out of the estate on asolicitor-client basis resulting in full identity to the client for this application. I agree in principle with this, however, such costs beingawarded shall be subject to this Court’s right to review. I am going to add a rather unusual direction here.

The originating notice attemptsto join the lawyer who drafted the will into these proceedings insofar as the costs were sought against that lawyer specifically. That, inmy view, is not a permissible use of the originating notice. However, since it appears that it is highly unlikely that the executor wouldseek taxation of the account rendered by its present solicitor, then it is appropriate under these circumstances to grant standing to thelawyer who drafted the will, or her agent, to participate in any application regarding the costs to be awarded and paid out of the estate forthis application.

I say this because it appears possible that a third party may have to be responsible for ultimate reimbursement to theestate and I cannot see any other convenient way to sort this out. [9] I will now deal with the substance of this application which is the construction of the will and how to approach thedistribution under the will. REASONS FOR COURT’S RELIEF [10] It is uncontroverted and I have no doubt that in any event Ms. Heaton wanted her generosity to be applied as per her memo.In short, the museums of southern Saskatchewan should have received 20% and not 10%.

Further, there is no doubt that each museumwas to receive a one-fifth share of the 20% (i.e. Cannington Manor Historic Park and Rusty Relics Museum were not to share a singularpart of the 20%). [11] In coming to my above conclusions, I have looked at what is often referred to as extrinsic evidence. The only thing the faceof the will reveals is that there was a mathematical error, obviously, and that only 90% of the estate was distributed.

I also recognize thatif the will did not specifically deal with 10%, then that could have fallen into intestacy and those who take under such a situation wouldhave received their share. [12] I have reviewed the case of Re: Piper, (ON SC), [1912] 2 D.L.R. 132 (H.C.). This case indicates thatthere should be a strict adherence to the face of the will and its reading and extrinsic evidence should not be referred to. [13] However, counsel for the executor has referred me to a number of cases that show a different and more modern approach tothe construction of wills.

In this regard, I reviewed the cases of Stevenson Estate v. Anderson, 2012 SKQB 342, [2012] S.J. No. 538(QL); Chabros v. Anderson, 2012 ABQB 517, [2012] A. J. No. 859 (QL); Lipson v. Lipson, (Ont.. Sup.Ct.);Daradick v. McKeand Estate, 2012 ONSC 5622, [2012] O. J. No. 4766 (QL); Murray Estate, 2007 BCSC 1035, [2007] B.C. J. No. 1546(QL). [14] These cases, as indicated, show a modern approach to the construction of wills. In this case, there simply is no doubt thatthere was an error made in the drafting of the will and the intentions of the testator were not fulfilled when the will was executed.

I amnot prepared to have the 10% fall into intestacy and prefer to have the intent and desire of the testator honored by the use of the extrinsicevidence provided.

CONCLUSION [ 15 ] Accordingly, there shall be an order that 20% of the residue of this estate is to be distributed amongst the following beneficiaries: - Willow Bunch Museum - Wood Mountain Rodeo Ranch Museum - Cannington Manor Historic Park - Rusty Relics Museum - Le Beau Village Museum. [ 16 ] Costs have been dealt with above. I wish to express my appreciation to counsel for the executor for her helpful presentation. J. T. J. KEENE