Brian A. Henley Applicant And: Janet M. Henley, Q.C. First Respondent And: John J. Henley Second Respondent And: Christopher M. Henley Third Respondent, 2022 NLSC 103

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Henley Estate (Re) , 2022 NLSC 103 Date : June 23, 2022 Docket : 201301E12144 In The Matter of the Estate of Alec G. Henley, late of the City of St. John's, in the Province of Newfoundland and Labrador, retired businessman Between: Brian A. Henley Applicant And: Janet M. Henley, Q.C. First Respondent And: John J. Henley Second Respondent And: Christopher M. Henley Third Respondent Before: Justice Vikas Khaladkar Place of Hearing: St. John’s, Newfoundland and Labrador Dates of Hearing: October 26-30, 2020; February 10, 2022; March 21-25, 2022

Summary:

The parties requested the Court's assistance in determining what effect to give to an unanimous agreement of the Executors and trusteesin the face of potentially changed circumstances. They also sought the

interpretation of a term in the codicils to the Testator's Will. Appearances: Douglas W. Wright, Melissa M. Saunders and Siobhan Donovan Appearing on behalf of the Applicant Janet M. Henley, Q.C. Appearing on her own behalf John A. Bruce Appearing on behalf of the Second and Third Respondents Authorities Cited: CASES CONSIDERED: Burke, Re, (ON CA), [1960] O.R. 26 (C.A.); Ryan v. Smith, (SCC), [1972]S.C.R. 332; Dunn Estate v. Dunn (1990), (NL CA), 81 Nfld. & P.E.I.R. 170, 255 A.P.R. 170 (Nfld. C.A.) TEXT CONSIDERED: Albert H.

Oosterhoff et al., Oosterhoff on Wills, 8th ed. (Toronto: Thomson Reuters, 2016) REASONS FOR JUDGMENT Khaladkar, J.: INTRODUCTION [1] This is a matter involving the legal significance of a meeting attended by all of the Executors and beneficiaries of the Estate ofAlec G. Henley (“Estate”) on December 4, 2016. In addition, I have been asked to give directions concerning the

interpretation of theLast Will and Testament (“Will”) and two codicils that were executed by the Testator, Alec G. Henley. [2] I preface my decision with the observation that I have had the opportunity to assess the credibility of the children of Alec G.Henley: Brian A. Henley, Janet M. Henley, John J. Henley and Christopher M. Henley when they gave their viva voce evidence in thismatter. [3] I find that each of these persons was credible and provided evidence in a straightforward manner. None of the witnessesengaged in any kind of obfuscation, they answered the questions put to them directly, were neither evasive nor inconsistent. [4] The witnesses differed in their

interpretation of various matters, but I believe that they were all attempting, in their own way, toensure that the wishes of their late father, Alec G. Henley, were carried out. [5] All four witnesses are highly intelligent and successful of their own accord. Each of them has strongly held opinions that aredifficult to dislodge. This has led to deep divisions and a flurry of Court applications on a variety of issues. What has been lost in theprocess is Alec G. Henley’s desire that each of his children be treated equally under the terms of his Will and the codicils thereto. [6] Alec G.

Henley was a successful businessman in the City of St. John’s. He incorporated a company called CarpasiaInvestments Inc. (“CII”) as a personal holding company. Within that corporation he held a number of assets, including securities, sharesin the capital stock of Alec G. Henley & Associates Limited and Carpasia Properties Inc. (“CPI”). In his will, Alec G. Henley referred toall of the assets held in CII as “Carpasia Investments”. [7] Alec G. Henley directed that his Class “D” shares in Alec G. Henley & Associates Limited be transferred immediately uponhis death to his son, Brian A. Henley. Alec G.

Henley and Brian A. Henley were jointly involved in the business carried out by Alec G.Henley & Associates Limited. Alec G. Henley also bequeathed a life interest in his remaining investments to his wife, Catherine M.Henley, and directed that following her decease, the first $300,000 in value of his investments be transferred and delivered to Janet M.Henley, John J. Henley and Christopher M. Henley. The balance of his investments, under the terms of his Will, were to be transferred inequal shares to all four of his children.

[ 8 ] Alec G. Henley must have valued the Class “D” shares transferred to his son, Brian A. Henley, at $100,000. It was for this reason, in an effort to treat all of his children equally, that Alec G. Henley provided that the first $300,000 in assets of CII was to be equally divided among Janet M. Henley, John J. Henley and Christopher M. Henley. [ 9 ] Alec G. Henley executed two codicils to his Will of November 14, 2001. The first was executed May 6, 2010, and the second codicil is dated July 19, 2010. [ 10 ] In the May 6, 2010 codicil Alec G.

Henley provided as follows: 2) With respect to my 50% interest in Carpasia Properties, regardless of anything aforesaid as contained in that Will, 50% of Carpasia Properties is to be divided equally upon our deaths – Alec G. Henley & Catherine M. Henley to John Henley, Christopher Henley and Janet Henley Andrews in equal shares. My purpose for doing this is that I have not taken any commissions from Alec G. Henley Associates Limited since I sold my shares in the company to my son Brian Henley. This should rectify any injustice. [ 11 ] In July 19, 2010 the second codicil of Alec G.

Henley provided as follows: Item Two of my Codicil of May 6 th , 2010 shall not be changed and thus my 50% interest in Carpasia Properties regardless of anything aforesaid contained in that Will, 50% of Carpasia Properties will be divided equally upon our deaths of Alec G. Henley and Catherine Henley to John Henley, Christopher Henley and Janet Henley in equal shares. [ 12 ] The parties have requested the Court to interpret the term “my 50% interest” as it appears in the two codicils. The Will of Alec G. Henley made the following disposition in relation to Alec G. Henley’s shares in CPI: 6.(3)D.

If my wife Catherine Mary Henley predeceases me or if she survives me, then upon my wife’s death, my Executors shall cause to be surrendered, conveyed and transferred to each of my children JANET HENLEY-ANDREWS, BRIAN HENLEY, JOHN HENLEY and CHRISTOPHER HENLEY one-quarter each of the shares in CARPASIA PROPERTIES INC. held by CARPASIA INVESTMENTS INC. (which shares are hereinafter referred to as the “CARPASIA PROPERTIES Shares”) at the time of my death, to be his or hers absolutely, … [ 13 ] There is a disagreement among the Executors as to the meaning to be ascribed to the term “my interest” used in the codicils.

The original Will referred to Alec G. Henley’s “shares”. It is posited by two of the Executors that the term “my interest” gives an expanded meaning to the bequest and requires the shareholder’s loan in the amount of $182,785 owed to CII to be transferred to the three beneficiaries of the CPI shares – Christopher, John and Janet. The remaining Executors disagree and say that the shareholder’s loan should not be transferred but, rather, should remain within CII. [ 14 ] There is an ancillary issue concerning the shareholder’s loan.

The problem was known before December 4, 2016 (a date of some significance that I will refer to later), but the reason for the discrepancy was not discovered until early 2017 by John Henley. The problem was that the books of CPI recorded a shareholder’s loan in favour of CII in the amount of $182,785. However, the loan was recorded on CII books as being $165,235. The difference was accounted for by two cheques that had been written by Alec G. Henley from his personal account and deposited to the credit of CPI. Alec G. Henley was an equal shareholder of CPI, Brian Henley being the other shareholder.

Brian Henley had a shareholder’s loan with the company in the amount of $182,785. [ 15 ] The disagreements among the Executors of the Estate of Alec G. Henley have been ongoing for a considerable period of time.

It is time to put an end to them so that the parties can move on. issues [ 16 ] What is the significance of the meeting of Executors conducted on December 4, 2016? [ 17 ] Are any of the Executors entitled to have set aside the agreements made on December 4, 2016 on account of new information coming to light? [ 18 ] What is the legal significance, if any, of the words “my 50% interest in Carpasia Properties” as that term was used by the Testator in the codicils to his Will? analysis What is the significance of the meeting of Executors conducted on December 4, 2016? [ 19 ] The meeting of December 4, 2016 was orchestrated by Estate counsel, Ms.

Sherri Wicks. I directed that Ms. Wicks be served with a subpoena duces tecum and that she attend the hearing as the Court’s witness under its Probate and Construction jurisdictions. I thought it prudent to hear from Ms. Wicks because she was independent of all of the parties to this litigation, and I felt that she would provide an unbiased perspective concerning the lead up to, and conduct of, the meeting of December 4, 2016. [ 20 ] Ms. Wicks was the last witness to testify. She was called by the Court, not by any of the parties. In fact, I had ordered each of the parties to refrain from contacting Ms.

Wicks so that her impartiality could be preserved. All parties respected my wishes. Ms. Wicks created a binder of documents relating to the Estate and shared it with each of the parties in advance of her testifying in Court. The same materials were also filed as an Exhibit in Court. [ 21 ] I ordered that Ms. Wicks’ fees for attending Court be paid at her hourly rate for preparation and Court attendance from the

Estate. All parties agreed that this was appropriate. [ 22 ] I asked Ms. Wicks a number of questions. Upon the conclusion of my examination of Ms. Wicks, I invited counsel to cross- examine her. [ 23 ] The salient features of Ms. Wicks’ testimony is that the administration of the Estate had come to a standstill on account of deep divisions among the Executors. It was necessary to have a last ditch attempt to obtain consensus – failing which it was going to be necessary to make Court applications for directions. [ 24 ] In that light, Ms.

Wicks put together a list of outstanding issues and circulated them in draft agenda format to each of the Executors. She received input from the Executors and, as necessary, amended the agenda. This was accomplished well in advance of the meeting of December 4, 2016. An agenda containing 19 decision items was prepared in advance of the meeting. [ 25 ] It was the intention of all of the Executors to attend the meeting with a view of finding common ground on a number of issues.

Each participant came to the meeting with an intention to either resolve the outstanding issues or refer them to Court or arbitration for decision. [ 26 ] Prior to the meeting Janet Henley had commenced an application to have all of the Executors of the Estate removed and replaced by the Public Trustee. Ms. Henley was well aware that the Public Trustee’s fees would amount to 8% of the value of the estate. However, she testified that the cost of the Public Trustee would have been less than the cost of ongoing litigation.

I suspect that there is much truth in her assessment. [ 27 ] Agenda item No. 2 referred to the necessity of using Court or an arbitrator to determine any unresolved issues. At the meeting, the Executors agreed to defer this decision item to the end of the meeting. When the meeting concluded all four parties were of the view that there was no necessity to refer any of the matters for further determination – since, after a marathon meeting spanning eight or nine hours, they had accomplished what they had set out to do.

The Executors had achieved unanimous decisions on all of the agenda items. [ 28 ] The agenda item of particular interest for this litigation was item No. 7.

It dealt with the valuation of the assets of CII and the distribution of shares in CII to the four beneficiaries. [ 29 ] The parties agreed to remove the value of the property on Winter Avenue (which was purchased by Brian Henley through CII) from the assets of CII for the purpose of the valuation of CII. [ 30 ] The parties agreed that the value of the CII assets would include: • The Refundable Dividend Tax On Hand (RDTOH) at a discounted value of $43,857.48; • Shares in CPI valued at $179,889.34; • Market portfolio valued at $469,901.00; • Cash valued at $67,361.00; and • CPI Shareholder Loan valued at $182,785.00 [ 31 ] The total value of the foregoing assets was calculated to be $943,793.82.

The numbers agreed to were provided to the meeting by John Henley on a spreadsheet. John Henley had prepared the calculations. [ 32 ] The Will of Alec G. Henley had provided that the first $300,000 in value of the CII assets were to be transferred to Janet, Chris and John. The balance was to be divided among all four children, Janet, Chris, John and Brian. At the December 4, 2016 meeting a spreadsheet was prepared and appended to the minutes of the meeting.

I reproduce the spreadsheet because it is important to my decision: Distribution of Common Shares in CII to Beneficiaries Asset Value with CPI Included $943,793.82 Asset Value with $300,000 removed $643,793.82 # of shares in CII John $260,948.46 27.65% 28.20186 Chris $260,948.46 27.65% 28.20186 Janet $260,948.46 27.65% 28.20186 Brian $160,948.46 17.05% 17.39442 [ 33 ] The Will of Alec G. Henley provided, in part, as follows: 4. … “Discretion” means absolute and uncontrolled Discretion to the extent enabled by law. … 6.

(3) CARPASIA INVESTMENTS INC. Shares – At the date of my Will, I own all the outstanding shares (hereinafter referred to as the “CARPASIA INVESTMENTS Shares”) in CARPASIA INVESTMENTS INC., a company incorporated under the laws of the

Province of Newfoundland and Labrador. I have used CARPASIA INVESTMENTS INC. as a convenient medium for acquiring and holding investments, shares in other companies, securities of various kinds together with various other assets, including shares in the capital stock of ALEC G. HENLEY & ASSOCIATES LIMITED and of CARPASIA PROPERTIES INC., (all of which investments, shares, securities and other assets hereinafter referred to as the “CARPASIA INVESTMENTS Assets”) and generally for the purposes of a personal holding company.

I direct that all of the CARPASIA INVESTMENTS Shares belonging to me at my death be dealt with upon the following trusts: A. Notwithstanding any power or authority granted to my Executrix or Executors under my Will to retain or postpone the realization of assets of my Estate, I direct that my Executrix or Executors, as the case may be, shall immediately case to be surrendered, conveyed and transferred to my son BRIAN HENLEY all of the Preference “D” Shares in and of ALEC G.

HENLEY & ASSOCIATES LIMITED held by CARPASIA INVESTMENTS INC. at the time of my death, to be his absolutely, and said Preference “D” Shares shall not be included as CARPASIA INVESTMENTS Assets for any of the purposes hereinafter set out in this my Will. I hereby confirm that the ten Preference “C” Shares in and of ALEC G. HENLEY & ASSOCIATES LIMITED held by CARPASIA INVESTMENTS INC., or such of those Preference “C” Shares that remain outstanding at my decease, are to comprise and remain CARPASIA INVESTMENTS Assets to be dealt with as hereinafter provided for in paragraph 6(3)B of this my Will. B.

The CARPASIA INVESTMENTS Assets (for greater certainty, excluding those Assets disposed of by the preceding paragraph 6(3)A of this my Will) shall be valued at their fair market value, the method of which valuation to be in the Discretion of my Executrix or Executors (all subsequent references to “value” in this paragraph 6(3)B to mean the value determined by that valuation), and the CARPASIA INVESTMENTS Shares shall be divided and distributed among my children JANET HENLEY-ANDREWS, BRIAN HENLEY, JOHN HENLEY and CHRISTOPHER HENLEY in such proportions so that my children JANET, JOHN and CHRISTOPHER share equally in the first THREE HUNDRED THOUSAND DOLLARS ($300,000.00) in value of the CARPASIA INVESTMENTS Assets and so that my children JANET, JOHN, CHRISTOPHER and BRIAN share equally in any surplus value of the CARPASIA INVESTMENTS Assets in excess of Three Hundred Thousand Dollars ($300,000.00) … … D.

If my wife Catherine Mary Henley predeceases me or if she survives me, then upon my said wife’s death, my Executors shall cause to be surrendered, conveyed and transferred to each of my children JANET HENLEY-ANDREWS, BRIAN HENLEY, JOHN HENLEY and CHRISTOPHER HENLEY one-quarter each of the shares in CARPASIA PROPERTIES INC. held by CARPASIA INVESTMENTS INC. (which shares are hereinafter referred to as the “CARPASIA PROPERTIES Shares”) at the time of my death, to be his or hers absolutely, … 10.

If one of my Executors or Trustees should at any time or from time to time disagree as to exercise or non-exercise of any Discretion or power herein or by law conferred on them then I direct that the decision in that behalf of the majority of them shall prevail.

While I hereby exonerate from all liability whatsoever and to whomsoever any Executor or Trustee participating in the exercise or non- exercise of any such Discretion or power with which such Executor or Trustee has recorded his disagreement in writing, I nevertheless direct that notwithstanding disagreement or personal interest such Executor or Trustee shall join and concur in the execution of any acts, deeds, documents, assurances and writings of the majority in the premises. … 14.

Subject to the specific provisions of this my Will, my Executrix and Executors may make any division of my estate or set aside or pay any share or interest therein, either wholly or in part, in the assets forming my estate at the time of my death or at the time of such division, setting aside or payment, and I expressly declare that my Executrix or Executors shall in her or their absolute Discretion fix the value of my estate or any part thereof for the purpose of making such division, setting aside or payment and their decision shall be final and binding upon all persons concerned. [ 34 ] Alec G.

Henley executed two codicils, one on May 6, 2010 and the other on July 19, 2010. In the May 6, 2010 codicil Alec G. Henley provided as follows: 2) With respect to my 50% interest in Carpasia Properties, regardless of anything aforesaid contained in that Will, 50% of Carpasia Properties is to be divided equally upon our deaths – Alec G. Henley & Catherine M. Henley to John Henley, Christopher Henley and Janet Henley Andrews in equal shares. My purpose for doing this is that I have not taken any commissions from Alec G. Henley Associates Limited since I sold my shares in the company to my son Brian Henley.

This should rectify any injustice.

[ 35 ] The July 19, 2010 codicil confirmed the foregoing disposition. [ 36 ] Some time after the December 4, 2016 meeting Christopher Henley and John Henley took the position that the term “my 50% interest” in the two codicils included not only the 50% shares that were devised to Janet, John and Christopher but, as well, the shareholder’s loan in the amount of $182,785.00. [ 37 ] In addition, John Henley discovered the reason for a discrepancy between the shareholder’s loan amounts that had been recorded on the books of CPI ($182,785) and CII ($167,285). The discrepancy was $17,500. It came about because Alec G.

Henley paid that amount, with two separate cheques from his personal account, to CPI on account of the shareholder’s loan account of CII. Technically, he should have had CII pay the money to CPI, but he didn’t. The existence of the discrepancy was well known before the meeting of December 4, 2016. The cause of the discrepancy was not discovered until 2017. [ 38 ] I alluded in the opening paragraphs of the introduction to this decision that none of the Executors in this matter are acting in bad faith. Each has, understandably, his or her strongly held views.

I do not need to make credibility assessments in this matter because credibility is not in issue. All of the Executors agreed that the December 4, 2016 meeting was a “last kick at the cat” to try and reach consensus with respect to the issues that were confronting them. In the absence of agreement, the next course was to resort to some form of dispute resolution. [ 39 ] All parties took the position that an agreement was reached on December 4, 2016.

The minutes of the meeting were prepared by estate counsel and, at the end of a long day of give and take, the Minutes were initialed and signed by each of the Executors with the notation: “Acknowledged and agreed to the Executors on December 4, 2016”. [ 40 ] Sherri Wicks, counsel for the Estate, testified that the purpose for initialing and signing the Minutes was to ensure that everyone was agreeing and endorsing the agreements that had been made. She indicated that she wanted to keep the parties on a straight and narrow path, and the Minutes were the product that was utilized for keeping them accountable.

She indicated that at the end of the meeting everyone felt that they had made progress and most of the matters in contention had been resolved. [ 41 ] It is important to remember the direction of Alec G. Henley as evidenced by his Will. He was careful to define the term “Discretion” and he gave it the greatest latitude that he could give it according to law: “absolute, uncontrolled – to the extent enabled by law”. [ 42 ] Alec G. Henley then breathed life into the definition by conferring the power it represented upon his Executors.

In paragraph 6(3)B he said that the method to be employed in the fair market valuation of his CII assets was to be in the discretion of his Executors. [ 43 ] And he went one step further. Alec G. Henley understood that there was a possibility of gridlock. He did not wish to encumber his Executors by demanding that they be of an unanimous mind while administering the Estate.

In paragraph 10 of his Will he directed that three out of four Executors were sufficient to make decisions concerning the exercise of the discretion and powers conferred upon them by the Will or by law, and the dissenting director was bound by the Will to give effect to the decision made by the majority. [ 44 ] The valuation of the CII assets was an exercise in discretion carried out by the Executors in furtherance of the stipulations contained in the Will of Alec G. Henley. There were no dissenting Executors when the valuations were arrived at.

The decisions were unanimous. [ 45 ] John Henley and Christopher Henley take the position that information came to their attention subsequent to December 4, 2016 that should result in the Executors setting aside the agreements made at the said Executors’ meeting. They argue that the agreements were entered into as a result of mutual mistakes and, for that reason, they should be set aside. [ 46 ] John Henley and Christopher Henley point to the cheques that were discovered tending to show that Alec G. Henley paid $17,500 from his own account to the credit of CPI’s shareholder’s loan account.

They say, as a result, that the shareholder’s loan should be decreased by $17,500. [ 47 ] In addition, John Henley and Christopher Henley argue that the words “my interest” contained in the two codicils to the Will of Alec G. Henley must be interpreted to mean that Alec G. Henley intended that his shareholder’s loan to CPI was to be transferred to John, Christopher and Janet in the same manner as his 50% interest in CPI is to be transferred. [ 48 ] Giving effect to John Henley and Christopher Henley’s wishes would significantly negatively affect Brian Henley’s entitlement under the Will of Alec G.

Henley. [ 49 ] The Executors, at their December 4, 2016 meeting, unanimously agreed upon a valuation method for the assets of CII. This involved the acceptance of the value of a number of assets as of Alec G. Henley’s date of death. The values so accepted gave a global number for the value of the CII assets which, in turn, was used to determine the value to be used for the distribution of the shares in CII. [ 50 ] John Henley and Christopher Henley now wish to undo some of those decisions. The objections that they are now making were fully discussed at the December 4, 2016 meeting.

In that regard the Affidavit of John Henley dated January 13, 2020 is instructive: 21. At the December 04, 2016 Executors meeting I and my brother, Christopher Henley the Third Respondent, objected to the use of the CPI Shareholder Financial Statements, which showed a CII Shareholder Loan Value of $182,785, in the CII Share allocation calculation as set out in clause 6(3)(

B) of the Alec G. Henley Will. We insisted the correct value to use was $165,285 as per the CII Financial Statements despite the claims of Brian Henley that Deloitte had not prepared them properly. 33. Brian Henley’s statement in paragraph 64 of his affidavit is incorrect. The CII value of the CPI shareholder loan was extensively discussed at the December 04, 2016 Estate meeting and previously during the preparation of the AGH final tax return. Brian Henley

consistently insisted that the CPI shareholder loan value contained in the CPI financial statements be used and not the value contained inthe CII statements. [51] The meeting of the Executors of December 4, 2016 was called explicitly for the purpose of clearing the log jam that hadoccurred after, in particular, the death of Mrs. Henley. Adequate notice of the meeting was afforded to all of the parties. It was properlyconvened and duly constituted. [52] The Executors of the Estate unanimously agreed to a number of matters.

The discrepancies now complained of were wellknown at the time of the meeting as evidenced by John Henley’s admissions reproduced in paragraph 50 above. There cannot be said tobe any mistake in relation to the issue of the value of the shareholder’s loan because, as stated by John Henley, they insisted on whatthey considered to be the proper value - $165,285 – but they agreed to a value of $182,785. [53] It should be noted that Brian Henley insisted on a shareholder’s loan value of $182,785 because that is the amount that he hadinjected into CPI by way of shareholder’s loans.

Since he and his father owned an equal number of shares in CPI it made logical sense,to Brian Henley, that the shareholder’s loan of CII be identical to his own. [54] Given that the Executors knew the issues relating to the valuation of the shareholder’s loan in CPI, the concepts of mutual,common and unilateral mistake simply do not apply. [55] The only way in which the Executors can now revisit that issue and change the number is if three out of four of them agree todo so. That is in keeping with the wishes of the Testator.

He specifically provided that the Executors were to have absolute anduncontrolled discretion – to the greatest extent legally possible. And he specifically provided that the Executors were to utilize thatdiscretion to determine the fair market value of the assets of CII. [56] The Executors unanimously agreed on December 4, 2016, after much deliberation, to use a number that Brian Henley hadinsisted upon. There is nothing wrong in them doing that. All four of them exercised the discretion that was given to them by the Testatorto value the assets of CII.

While this Court has inherent jurisdiction to intervene in the event that the Executors are at loggerheads, theCourt has no business to intervene in a situation such as this where all of the Executors were of the same mind. And I will not do so. Are any of the Executors entitled to have set aside the agreements made on December 4, 2016 on account of new information coming tolight? [57] No new information came to light. There was no mistake.

As such, none of the Executors are entitled to argue that theagreement of December 4, 2016, or some portion of it, should be set aside on account of new information coming to light. [58] Even if new information had come to light, if two out of four Executors did not agree to revisit the issue, there would be noentitlement to have the issue revisited. [59] The terms of Alec G. Henley’s Will are clear. Majority rules. If three of four Executors are of the same mind, the fourth mustgo along with the decision of the three. Here, of course, all of the Executors were of the same mind.

In order to set aside something thatthey earlier decided at least three out of the four must agree to do so. [60] The shareholder’s loan of CII to CPI is to be valued, for the purpose of determining the fair market value of CII, at $182,785. What is the legal significance, if any, of the words “my interest in Carpasia Properties” as that term was used by the Testator in thecodicils to his Will? [61] In Albert H.

Oosterhoff et al., Oosterhoff on Wills, 8th ed. (Toronto: Thomson Reuters, 2016), at page 439 the learned authorsstate: The function of the court of construction in interpreting a will is to ascertain the true intention of the testator within the limits of the law.These limits prevent the court from indiscriminately admitting evidence of the testator’s intention and of the circumstances surroundingthe making of the will.

Since it is the duty of the court to construe the document before it, it has traditionally been held that effect cannotbe given to an intention that is neither expressed nor implied by the words of the will. (Scale v. Rawlins, [1892] A.C. 342 at 343-344(H.L.), per Lord Halsbury, L.C. To do otherwise would render meaningless the requirement that a will must be in writing, and wouldinvolve the court in making a new will for the testator, something which courts have repeatedly said they will not do. … [62] I am bound by law to discern the expressed intentions of the Testator from the written words that he used.

The modernapproach to the construction of wills was stated by Laidlaw, J.A. of the Ontario Court of Appeal in Burke, Re (ON CA),[1960] O.R. 26 (C.A.) at paragraph 5 as follows: … The construction by the Court of other documents and decisions in other cases respecting the intention of other testators affords noassistance whatsoever to the Court in forming an opinion as to the intention of the testator in the particular case now under consideration.Other cases are helpful only in so far as they set forth or explain any applicable rule of construction or principle of law. … [63] Paraphrasing Oosterhoff, the intention of the testator is to be determined from the will as a whole, read in its context.

Particularwords and phrases are not to be read in isolation from the entire context. (Ibid, page 441). [64] Again, paraphrasing Oosterhoff, when interpreting an ambiguous or uncertain clause, the Court will strive to give effect to allthe words used by the testator, unless to do so would be contrary to the testator’s plainly expressed intention in other parts of the will. [65] Oosterhoff points out at page 446 that it is presumed that the testator did not intend capricious, arbitrary, unjust or irrationalconsequences to flow from his dispositions.

[66] Oosterhoff notes at page 466 that if the words of a will are ambiguous, as between next of kin of equal degree it is presumedthat an equality of distribution was intended and that the distribution is to be made per capita. [67] Alec G. Henley’s intentions were clear. He wanted his children to be treated equally under his Will – but he recognized the factthat Brian Henley was the inter vivos recipient of certain assets and that it was necessary for him to even the score for his remainingchildren.

This was precisely why John, Christopher and Janet received the first $300,000 in value of CII and the balance was split in fourequal shares. It was also the reason why Alec G. Henry amended the bequest of 50% of the shares in CPI in his codicil of May 6, 2010.By virtue of that codicil he amended his Will by leaving his 50% in CPI to John, Christopher and Janet instead of to all four of hischildren. He indicated: My purpose for doing this is that I have not taken any commissions from Alec G. Henley Associates Limited since I sold my shares inthe company to my son Brian Henley.

This should rectify any injustice. [68] It can be seen that Alec G. Henley was keenly aware of doing what was necessary so that all of his children benefited equallyunder the terms of his Will. [69] The Will of Alec G. Henley devised his shares in CPI in equal proportions to all of his children. The codicils revised thatdistribution by removing Brian Henley as a beneficiary of the shares of CPI. [70] Alec G. Henley was not only of sound mind and body when he executed his Will and his codicils, he was also an astutebusinessperson who had an excellent understanding of financial affairs.

His business was providing financial counselling to others –including aspects of insurance, retirement planning, structured settlements and so on. [71] The overarching principle that guided Alec G. Henley in the preparation and execution of his own Will and the codicils theretois the equal treatment of all of his children. He took great pains to ensure that everyone was treated the same – as far as that could bedone. This overarching principle is easily surmised from looking at the Will and the two codicils as a whole. This is in accordance withthe dicta of the Supreme Court of Canada in Ryan v.

Smith, (SCC), [1972] S.C.R. 332. [72] In ascribing meaning to the words that he used, therefore, one must bear in mind that overarching principle. If the words arecapable of being interpreted in such a manner as to breathe life into the overarching principle, then that meaning is to be preferred over ameaning that does violence to the overarching principle. And particularly so if there is ambiguity. [73] In entering upon this exercise our Court of Appeal has directed that the judge’s first task is to assess the language of the will todetermine the testator’s intent.

Only if the intention cannot be discerned from the language used is it permissible to view surroundingcircumstances. Dunn Estate v. Dunn (1990), (NL CA), 81 Nfld. & P.E.I.R. 170, 255 A.P.R. 170 (Nfld. C.A.) perGushue, J.A. [74] Let’s look again at the words that he used in his codicils: 2) With respect to my 50% interest in Carpasia Properties, regardless of anything aforesaid as contained in that Will, 50% of CarpasiaProperties is to be divided equally upon our deaths – Alec G. Henley & Catherine M.

Henley to John Henley, Christopher Henley andJanet Henley Andrews in equal shares. [Emphasis added] [75] John Henley and Christopher Henley argue that the underlined words import a direction to transfer not only Alec G. Henley’sshares in CPI, but the shareholder’s loan held by CII as well. [76] The Will of Alec G. Henley mentions only the shares in CPI. The codicils preface the gift of “50% interest in CarpasiaProperties” with the phrase “With respect to my 50% interest in Carpasia Properties”. [77] In my opinion Alec G.

Henley is not making a gift of his 50% interest in CPI – which would have included his shareholder’sloan. He is, rather, referring to the gift contained in clause 6(3)(

d) of the Will – the only clause that contains a bequest of an interest inCPI. [78] The words: “regardless of anything aforesaid as contained in that Will, 50% of Carpasia Properties is to be divided equally . . .to John Henley, Christopher Henley and Janet Henley Andrews in equal shares” can only mean the Testator’s shares in CPI.

Had heintended more than his shares to be transferred, he would have either used the words “50% of my interest to be transferred” or “50% ofmy interest, consisting of shares and shareholder’s loans to be transferred”. [79] I do not believe that there is any ambiguity in the language used by Alec G. Henley.

I find that he was transferring his shares inCPI firstly to his four children and, subsequent to this codicils, to three of his children. [80] If, as advanced by John Henley and Christopher Henley, the value of the shares in CPI and the shareholder’s loans are to beremoved from the value of CII, the agreed value of CII drops from $943,793.82 on December 4, 2016 to $581,119.48. This would resultin Brian Henley being entitled, after distribution of the first $300,000 to his siblings in accordance with the Will, to a one-quarter share of$281,119.48 or $70,279.87.

Moreover, his entitlement to the shares in CII would drop significantly. [81] This is not the result that Alec G. Henley intended. Yes, he made provisions to bequest more to John Henley, ChristopherHenley and Janet Henley-Andrews in an effort to ensure that no one gained an advantage over the other.

But he could not have possiblyintended a result that would require the virtual disentitlement of Brian Henley from an equitable share in his estate. [82] I have already found that the meeting of December 4, 2016 resulted in binding agreements that may not be overturned by theExecutors unless a majority of them agree to do so. To that extent the foregoing discussion concerning the

interpretation of the Will is

moot. However, I had told the parties at the conclusion of this hearing that I would render an opinion regarding the construction of the Will and codicils and, now, I have done so. costs [ 83 ] Costs can be regarded as a punitive remedy awarded in an adversarial context. [ 84 ] This is a family disagreement that has spiraled out of control. The awarding of costs would only exacerbate the already strained relationships in this family.

All of the parties have sufficient means, and need not be compensating one another because they have sought to express views that they strongly hold. [ 85 ] I exercise my discretion to refrain from awarding any costs in this matter. [ 86 ] I make the following Orders: a. The agreements made during the meeting of December 4, 2016 are binding on all of the parties; b. The codicils do not convey an interest in shareholder’s loans to the three siblings named therein; c. The parties shall each bear their own costs of this application. _____________________________ Vikas Khaladkar Justice