2010 ONSC 6355, 2010 ONSC 6355

CITATION : Gibbon Estate v.

Sleeping Children Around The World, 2010 ONSC 6355 COURT FILE NO.: 05-58/10 DATE: 20101123 SUPERIOR COURT OF JUSTICE – ONTARIO IN THE MATTER OF The Estate of Margaret Ross Gibbon, deceased RE: MICHAELINE PARACHUK ( formerly Baldwin) in her capacity as Estate Trustee for the Estate of Margaret Ross Gibbon, Applicant AND: SLEEPING CHILDREN AROUND THE WORLD, SCOTTISH SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS, CHILDREN 1 st (ROYAL SCOTTISH SOCIETY FOR THE PREVENTION OF CRUELTY TO CHILDREN), UNICEF CANADA, CANADIAN WILDLIFE FEDERATION, TORONTO WILDLIFE CENTRE, WWF CANADA, WILDLIFE PRESERVATION CANADA, WILDLIFE HABITAT CANADA AND THE PUBLIC GUARDIAN AND TRUSTEE, Respondents BEFORE: Stinson J.

COUNSEL: Kelly A. Charlebois , for the Applicant Clayton A. Hudson , for the Respondent Scottish Society for the Prevention of Cruelty to Animals HEARD: November 9, 2010 ENDORSEMENT [ 1 ] The estate trustee brings this application for an

interpretation of the deceased's testamentary documents. The questions of

interpretation involve: (

a) a handwritten will executed in 1989 and attested by two witnesses ("1989 Will"). The 1989 Will contains numerous handwritten notes made by the deceased on various occasions, some of which apparently post-date the 1994 Will, mentioned below; (

b) a formal typewritten will drafted by a solicitor, executed in 1994 ("1994 Will"); and (

c) a handwritten note made by the deceased dated June 14, 2007 that was found among the deceased's paper following her death ("2007 Note"). [ 2 ] The deceased was born in Glasgow, Scotland on June 16, 1922. She died in Toronto on February 17, 2010. She resided in an apartment in Toronto. She was not married and had no children. Her only living relatives are a brother and a niece who reside in Brighton, England, with whom she was not in contact in the years preceding her death.

Her estate consists mainly of Canada Savings Bonds and cash, with a total value of approximately $300,000. [ 3 ] Although a variety of potential charitable beneficiaries were served with notice of this application, as well as the Public Guardian and Trustee, the only respondent who appeared was the Scottish Society for the Prevention of Cruelty to Animals ("SSPCA"). Under the 1989 Will, a portion of the residue was bequeathed to "Royal Society for Cruelty to Animals & Children, 15 Royal Ter.

Glasgow G3." Under the 1994 Will, the residue of the estate was bequeathed to the "Glasgow and West of Scotland Society for Prevention of Cruelty to Children and Animals, presently located at 15 Royal Terrace, Glasgow G3, Scotland." Based on inquiries made by the estate trustee, there is no charity that is known by either name. A charity formerly known as the "Glasgow and West of Scotland Society for the Prevention of Cruelty to Animals" merged to become the SSPCA and is located at 15 Royal Terrace in Glasgow.

A charity formerly known as the “Royal Scottish Society for the Prevention of Cruelty to Children" – now known as "Children 1st" has no known connection with that address. Although served with notice, Children 1st did not participate in the proceedings. [ 4 ] The 1994 Will was prepared by a solicitor and formally executed. It contains the standard clause revoking all prior wills. Ordinarily, this would remove the 1989 Will from consideration. The 1989 Will, however, was altered by the deceased through interlineations and handwritten notes, some bearing dates subsequent to the execution of the 1994 Will.

It is therefore conceivable that the effect of some of those handwritten alterations was to "revive" the 1989 Will. [ 5 ] Section 19(1) of the Succession Law Reform Act , R.S.O. 1990, c. S.26 (“ SLRA ”), provides that a will or part of a will that has been in any manner revoked is revived only, (

a) by a will made in accordance with the provisions of this Part; or (

b) by a codicil has been made in accordance with the provisions of this Part, that shows an intention to give effect to the will or part that was revoked, or,

(

c) by re-execution thereof with the required formalities, if any. [ 6 ] Neither (

a) nor (

c) applies in the present case. In relation to (

b) the first question is whether the handwritten markings made on the 1989 Will amount to a codicil. A holograph codicil can be effective to amend (and presumably revive) a formal will, even if the codicil was written on the will: see MacDonnell, Sheard and Hull, Probate Practice , 4th ed. (Toronto: Carswell, 1996) at 78-79. Pursuant to s. 1 of the SLRA , "will" includes a codicil.

To constitute a valid holographic will or codicil, however, the document must be entirely in the testator’s own handwriting and signed by the testator: see s. 6 of the SLRA. [ 7 ] In the present case, the deceased initialled some but did not sign any of the changes or interlineations on the 1989 Will. Because none of the changes included the signature of the deceased as required by s. 6 , I conclude that they cannot amount to a valid holograph codicil.

It follows that they cannot be effective to revive the 1989 Will. [ 8 ] Before turning to the 1994 Will, it is useful to consider the significance of the 2007 Note. It was found in an accordion folder containing other papers of the deceased, in her apartment, following her death. For safekeeping purposes, the estate trustee stapled it to the cardboard jacket containing the 1994 will.

There is no other evidence that the two documents were physically connected. [ 9 ] The 2007 Notes begins with the heading "To be added to Will." It goes on to list certain specific bequests, and includes a note referring to the "Glasgow Children & Animal Society.” The signature of the deceased appears at the bottom. [ 10 ] The question to be addressed in relation to the 2007 Note is whether it constitutes instructions for the preparation of the future will, or whether it was intended to take effect in the absence of a formal document.

In The Canadian Law of Wills , Feeney notes that, for such instructions to be accepted by the court as a valid will, "the court must be satisfied that they were intended to have disposing effect in the absence of a formal instrument and not, … simply intended as a guide or statement of information for a future will." See Feeney, The Canadian Law of Wills , 3rd ed. (Toronto: Butterworths, 1987) vol. 1, p. 8.

As stated in Clark and Martyn, Theobald on Wills, 15th ed. (London: Sweet & Maxwell, 1993) at 26: "a duly executed instrument, described as instructions for a will, may have effect as a will, if it appears that it was intended to take effect in the absence of a more formal instrument." [ 11 ] In the present case, the deceased had executed two previous wills. In each case, they were witnessed by two independent parties. She was familiar with the requirements of a formal will, having used a stationer’s form for the 1989 Will and having attended before a solicitor for purposes of the 1994 Will.

It was her practice (as reflected in some of the notations found on the 1989 Will that later came to be incorporated into the 1994 Will) to make notations of changes that subsequently came to be made in a formal will. Additionally, where she chose to make an actual change to her bequests, she adopted the practice of making them by way of signed, handwritten markups to the actual will. This is plainly what she did in adding the bequest of half the residue to a different charity in the 1994 Will. [ 12 ] By contrast, the 2007 Note is a stand-alone document.

Unlike the 1989 Will and 1994 Will, it lacks the formality associated with her prior testamentary dispositions and changes thereto. Based on her past practice, I infer that had the deceased wanted to effect changes to her testamentary dispositions, she would have done so more formally, either by marking them on the actual will document, or by instructing a solicitor to prepare a new will or formal codicil. I therefore conclude that the 2007 Note was a statement of information for a future will only, and does not have testamentary effect. [ 13 ] I now turn to the 1994 Will.

As originally drafted, the residue clause provided as follows: "To convert the entire rest and residue of my estate into money and to pay, convey and transmit the same to Glasgow and West of Scotland Society for Prevention of Cruelty to Children and Animals, presently located at 15 Royal Terrace, Glasgow G3, Scotland." On the original will, to the above left and in the margin of this clause, in the deceased’s handwriting appears the following: "Half to below half to Sleeping Children Around the World". Below that appears the deceased’s signature and the date "2 Nov 1988”.

Given that this will was not prepared until 1994, it is self-evident that the date is erroneous. The question remains whether the handwriting and signature amount to a testamentary disposition. If so, this would amount to a codicil that alters the bequest of the residue from 100% to a single recipient, to a 50/50 division between two beneficiaries. [ 14 ] I have previously noted that it is possible for an effective handwritten codicil to be made on the face of a formal will. In this case, the notation is entirely in the handwriting of the deceased and is accompanied by her signature.

It therefore qualifies as a codicil. In my view, therefore, the effect of this notation is to alter the previous bequest of the entire residue to a single recipient, and to substitute a 50-50 allocation between two named beneficiaries. I note that the evidence establishes that the deceased had a practice of supporting the charity known as "Sleeping Children Around the World".

Viewed in the context of that extrinsic evidence, this disposition makes sense, and in my view reflects the intention of the testatrix. [ 15 ] The remaining issue to be addressed is the significance of the apparent misnomer of the intended recipient of the other 50% of the residue. As noted at the outset of these reasons, there is no organization known as the "Glasgow and West of Scotland Society for Prevention of Cruelty to Children and Animals".

The successor to the charity formerly known as the Glasgow and West of Scotland Society for Prevention of Cruelty to Animals, which continues to operate at 15 Royal Terrace, Glasgow, is the SSPCA.

Based on the extrinsic evidence as to the location of this latter charity at the address named in the 1989 and 1994 Wills, I conclude that it was the intention of the testatrix to benefit this charity and not the charity now known as Children 1st. [ 16 ] For these reasons, I conclude that the 1994 Will as modified by the handwritten codicil appearing on page 3 thereof, above and beside paragraph 3(d), are the valid last will and testament and codicil of the deceased.

I further declare that the respondent charities, Sleeping Children Around the World and SSPCA are the residuary beneficiaries, each as to a one half interest in the residue. [ 17 ] The difficulties that brought the parties to court were created by the handwritten notations made by the deceased. Those notations resulted in uncertainty on the part of the estate trustee and the SSPCA regarding the correct disposition of the residue. The SSPCA has enjoyed considerable success.

In the circumstances, I direct that both the estate trustee and the SSPCA should be paid their costs out of the estate, on a full indemnity basis.

___________________________ Stinson J. Date: November 23, 2010