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| Date: | 2006-09-06 |
| Docket: | 4479/06 |
| URL: | http://www.canlii.org/en/on/onsc/doc/2006/2006canlii30580/2006canlii30580.html |
| Noteup: | Search for decisions citing this decision |
COURT FILE NO.: 4479/06
DATE: 2006/09/06
RE: Estate of Frank McCauley Atherton
James Bidgood Atherton v. Alan Frank Atherton et al
BEFORE: Madam Justice J.W. Scott
COUNSEL: David M. Smith for the Applicant,
William Heelis for Alan Frank Atherton
[1] Frank McCauley Atherton, a widower, died on November 9th, 2004 survived by two sons, Alan and James and eleven grandchildren, including Caroline Atherton. Pursuant to his last Will dated November 20th, 2003, following distribution of his personal property, the residue of his estate was to be divided into three shares with two of the shares to go to his son James Atherton and the third share to be divided equally between his surviving grandchildren. Although the Will provided that both James and Alan were to be Estate Trustees, Alan has renounced this appointment.
[2] What brings this matter before the court now are two handwritten documents dated November 6th, 2004, signed by the deceased when he was in hospital. James Bidgood Atherton, as Estate Trustee, has asked the court for direction as to whether one or both of these documents are valid wills and if so what impact they would have. He advocates no specific position, remaining neutral on the issue.
BACKGROUND EVENTS
[3] The material would suggest that on or about November 4th, 2004 when Caroline Atherton was visiting her grandfather at hospital, the deceased handed her the two handwritten documents in question and asked her if she would type them up and then bring back six copies of each for him to sign when she next visited. Caroline indicated that she would and also asked her grandfather whether she should call his lawyer, to which he responded in the negative. Although Caroline and her grandfather apparently had no specific conversation concerning the contents of the documents on that date, when questioned by counsel for the Applicant at examinations, she indicated that on prior occasions he had told her that “he thought he had made a mistake” with respect to his will.
[4] On November 6th, 2004, according to James, during a visit with his father the deceased advised him “now that you’re both [James and his wife] here, I’ve done something that you are not going to like. It’s been bothering me for 6 months. I want Al to have the house...They say you can put it in a trust.” In response to his father’s concerns, James advised that all was in place and that his brother would be treated fairly.
[5] The next significant date is November 7th, 2004. The deceased had a number of visitors at the hospital on that date including Kathy Pierce (his cleaning lady). She advised James Atherton, who was also in attendance, that the deceased had asked her to come to the hospital on the prior Friday to sign some papers that Caroline was preparing. She had been unavailable to come on that day. Caroline too was at the hospital on November 7th , and had with her the typed documents. When she entered her grandfather’s room she was surprised to see James and his wife there. She approached her grandfather to give him a kiss at which point he said to her “Everything is fine.” During the course of her visit, there was no mention of nor request for the typed papers.
[6] On November 8th, 2004, Caroline re-attended at the hospital to see her grandfather. Again her uncle and his wife were present. In the hallway James specifically asked Caroline about the papers; however, Caroline advised that she did not have them with her. Caroline did tell her uncle that she would give them to him. Again during the course of the visit with the deceased there was neither a mention of nor a request for the papers.
[7] As noted at the outset, Frank Atherton died the following day.
[8] The two documents were apparently efforts to address two separate issues. The first document indicates that it was in response to a letter the deceased had read, likely either the letter sent by his lawyer concerning monies that may have been outstanding to the deceased or his wife or a follow-up note to that letter written by James Atherton. The note indicates in response to reading that letter:
So! Alan, Pattie Laura, Leigh, Tim, Caroline Atherton, Conside[sic] All Loans as paid in full as of July,6/2004.
The names “Frank Atherton” and “Mildred Atherton” are then printed, with instructions for “copies to all named”. There are two separate lines each with the word “whitness” [sic] next to them. At the bottom of the page is the signature of the deceased and a date of November 6th, 2004.
[9] The second document, also in the writing of the deceased reads as follows:
Further to note of nove/6 I wish to have my house, contents, shop, contents, machinery all converted to Alan F. Atherton with a fund set up to complete maintanance [sic] of all, for 5 years.
It too has the name of the deceased printed with two lines underneath for witness signatures. At the bottom of the page is the signature of the deceased and the date November 6th, 2004.
THE LAW
[10] Pursuant to section 6 of the Succession Law Reform Act, R.S.O. 1990 c. S.26, as amended, a will written and signed in a testator’s own hand may be recognized as valid, even without the signature of witnesses.
[11] Not every note handwritten prior to death however suddenly becomes a will. It is necessary that the testator intends for the document to be a testamentary document. Timing as well plays a role.
[12] Feeney’s Canadian Law of Wills (4th Edition) at page 1.4, paragraph 1.7 points out:
A testamentary gift occurs when the donor intends to make a gift that is effective only at the donor’s death and is revocable until then- the gift is said to be “dependent on death for its vigour and effect.”
[13] Even where a document appears to be addressing what should happen with certain property on death, the court must still determine:
(i) is there evidence of a donative intent? or,
(ii) is the document intended to act only as a guide or direction?
[14] In considering the question of whether a donative intent exists, the court must consider whether a deceased intended for the document to be a testamentary devise. Did the testator show a “deliberate, fixed and final intention” in the document to dispose of the property after death? Without that intent the document will not be accepted for testamentary purposes. Courts have often recognized that written signed instructions to a solicitor for preparation of a will, can be reflective of a donative intent and in those cases frequently the holograph has been accepted for probate.
[15] In Macdonell, Sheard and Hull on Probate Practice (4th edition), at p. 54 it is noted:
In such cases [where a document is not perfectly clear and where a testator intended to do something further to give more formal effect to his intentions] the informal or preliminary document, if properly executed, may be admitted to probate if the deceased has finally decided to make the disposition of his property expressed in the imperfect paper; and it is shown that he never abandoned that intention, but was only prevented by the act of God from proceeding to the completion of the will—that the deceased, having the firm intention to give effect to the instrument in a more formal state, had no opportunity of proceeding to complete that intention, inasmuch as his further progress was arrested by the act of God, by death, or some supervening inability.
[16] Additionally, it has been held that if a testator believed that a document required two witnesses in order to be an effective will, the court should not find in those circumstances the holograph to be a valid will. (Re Wernicke (1983), 15 E.T.R. 197 (Sask.Surr.Ct.)
APPLICATION OF THE LAW TO THE FACTS
[17] It is clear from a review of the law that each case will depend very much on its own facts. Having considered the law in the context of the facts presented here, I would conclude that neither holograph qualifies as a testamentary devise in the case at hand.
[18] While there is no doubt that both these documents were written and signed by the testator, it would also appear that his expectation was that they would be typed, returned to him and witnessed by two people before gaining any force. He apparently had spoken to Kathy Pierce about attending for this purpose. There was no discussion with Caroline concerning the contents of the documents on November 4th; his only request was that she type them up. When Caroline Atherton arrived on November 7th, 2006, it was after the deceased had discussed his concerns with respect to his property with James and had been reassured by him that Alan would be treated fairly. He neither discussed nor raised the documents again with Caroline after November 4th, 2004, despite two separate attendances by her, one of which was at the same time as Kathy Pierce, a potential witness, also was visiting. The conclusion I would draw from these facts is that the testator did not perceive his handwritten notes to be anything more than a draft, that he was satisfied with the response of James on November 6th, and that he therefore did not feel it necessary to address the issue further. Clearly he continued to trust James as no change to the named executors is in any way raised in the handwritten documents.
[19] Having found that the deceased likely believed that the documents would have required the signature of two witnesses to be effective, I conclude that the testator did not intend for these handwritten notes to be testamentary devises.
[20] I might add that with respect to the first handwritten note there is also good reason to conclude that this is not a testamentary document in any event. It is a forgiveness of debts that was to be effective in July of 2004, not the date of death. If this note is to have any effect at all, it would appear to be an acknowledgement by the deceased in November of 2004 that the persons named were to be considered free of any loan repayment to him at that earlier date.
COSTS
[21] The action of the James Bidgood Atherton in bringing this matter before the court for determination is entirely appropriate and in keeping with his obligations and responsibilities as Estate Trustee. Costs should be payable by the Estate to counsel on behalf of the applicant on a substantial indemnity basis.
[22] With respect to counsel on behalf of Alan Atherton, I would conclude that he too should receive his costs on a substantial indemnity basis, noting that his involvement was limited in extent. There was no effort on the part of Alan Atherton to involve himself in aggressive litigation. I would also find his position to have been one of simply seeking a ruling of the court without creating friction or unnecessary expense to the ultimate beneficiaries.
___________________________
J.W. SCOTT
DATE: September 6th, 2006
