Wills, estates and trusts law — Wills — Construction — Persons entitled to take — Testamentary intention — Donees and beneficiaries — Description of — Spouses, including common law — All nieces and nephews of testator and his wife were beneficiaries of estate, where testator showed intention in prior wills to benefit all, not just children of his own spouses — Spouse of one deceased niece, entitled to share of estate, not entitled to collect her share where he was convicted of her murder.
Application by executor of Holmes' estate for construction of provision of will — Provision provided for residue of estate to be paid to all nieces and nephews of testator — Testator had eleven nieces and nephews, while his wife had eighteen — Four prior wills of testator benefited both his and his wife's families — Six nieces and nephews of testator's wife testified to their close relationships with testator — Possible ambiguity in will raised with testator prior to his death, but he chose not to change will — One of testator's wife's nieces was killed by her husband — HELD: Nieces and nephews included children of testator's wife's siblings — Considering surrounding circumstances, this was testator's intention — Husband of murdered niece not entitled to her share of estate, as he was not to benefit from his wrongdoing.
Statutes, Regulations and Rules Cited:
Wills Act, R.S.B.C. 1996, c. 489,
Counsel:
Counsel for R.R. Holmes: J.D. Whyte
Counsel for the Holmes Family: E.F. Macaulay
Counsel for the Olson Family: W.K. Derby, Q.C., A.L. Cameron
GOEPEL J.:—
INTRODUCTION
¶ 1 The executor applies for the construction of the following provision in the Last Will and Testament (the "Will") of Cecil Charles Herbert Holmes, (the "Testator"):
I hereby direct that the residue of my estate be paid and transferred over to all my nieces and nephews share and share alike for their own use absolutely. |
¶ 2 The question for determination is whether the phrase "all my nieces and nephews" includes the children of the siblings of the Testator's late wife. If the answer to that question is yes, a further question arises as to whether the respondent Bruce Alfie Meadow is entitled to a share in the residue of the estate.
BACKGROUND
¶ 3 The Testator died on October 3, 2004. His wife died in 1982. They did not have any children. He executed the Will on June 9, 1995. The Will included the following provisions:
| (c) | I HEREBY DIRECT that the residue of my Estate be paid and transferred over to all my nieces and nephews, share and share alike, for their own use absolutely. |
If any of my nieces and nephews have predeceased me, then I DIRECT my Trustee to pay over his or her share of my Estate to his or her spouse, if they have survived me. |
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If the whereabouts of any of my nieces or nephews is unknown to my Executor, any monies spent in locating them is to be deducted from such niece or nephew's share of my Estate. |
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If after a period of six (6) months after the date of my death, my Executor has been unable to locate any niece or nephew, then I DIRECT that any unclaimed share of my Estate be paid to my Executor, Ronald Holmes, for his own use absolutely. |
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I have not named any of my brothers or sisters in this my Last Will and Testament, as I feel that their children are in more need of the money then [sic] they are, and that this would also have been the wish of my deceased wife. |
¶ 4 The Will was drafted by a notary and was executed in compliance with the Wills Act, R.S.B.C. 1996 c. 489. The notary who drew the Will is now retired and the parties have not been able to locate her whereabouts or determine her instructions.
¶ 5 The testator has eleven nieces and nephews who are the children of his siblings (the Holmes family). The testator's late wife had eighteen nieces and nephews who are the children of her siblings (the Olson family).
DISCUSSION
¶ 6 The primary objective for the court in interpreting a will is to determine the testator's intention. The will must be considered in its entirety. If there is no ambiguity on the face of the will then it should interpreted according to the ordinary meaning attributed to the words used. Only if there is an ambiguity should the court resort to evidence of surrounding circumstances. In the leading case of Perrin v. Morgan, [1943] A.C. 399 (H.L.) the court stated at p. 406:
[T]he fundamental rule in construing the language of the will is to put on the words used the meaning which, having regard to the terms of the will, the testator intended. The question is not, of course, what the testator meant to do when he made his will, but what the written words he uses mean in the particular case - what are the "expressed intentions" of the testator. |
¶ 7 In Davis Estate v. Thomas (1990) 40 E.T.R. 107 (B.C.C.A.) the court adopted the words of Mr. Justice Laidlaw in Re Burke (1959), 20 D.L.R. (2d) 396 at 398 (Ont. C.A.) at p. 110 as follows:
The Court is now called upon to construct a particular document and at the outset, I emphasize what has been said before so frequently. The construction by the Court of other documents and decisions in other cases respecting the intention of other testators affords no assistance 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 insofar as they set forth or explain any applicable rule of construction or principle of law. Each Judge must endeavour to place himself in the position of the testator at the time when the last will and testament was made. He should concentrate his thoughts on the circumstances which then existed and might reasonably be expected to influence the testator in the disposition of his property. He must give due weight to those circumstances in so far as they bear on the intention of the testator. He should then study the whole of the contents of the will and, after full consideration of all of the provisions and language used therein, try to find what intention was in the mind of the testator. Where an opinion has been formed as to that intention, the Court should strive to give effect to it and should do so unless there is some rule or principle of law that prohibits it from doing so. |
¶ 8 The terms "niece" and "nephew" have been the subject of judicial interpretation. In Re Daoust, [1944] 1 All E.R. 443, Vaisey J. stated at p. 444:
I have, in the first place, to consider what is in contemporary English the proper meaning of the word "nephew" and of the word "niece". There seems no doubt at all that the strict and proper meaning of the word "nephew" is "son of a brother or sister"; and, similarly, "niece" means, in the strict sense, "daughter of a brother or sister". But the meaning of each of these words is, in my judgment, susceptible of extension, having regard to the context and circumstance of the case, in two directions. First of all, the word may describe the child of a brother-in-law or of a sister-in-law; and, in the second place, I think that "nephew" is often used to indicate a niece's husband and "niece" is often used to describe the wife of a nephew. There are, of course, other extensions of meaning which may have to be made in special cases, such as, for example, in the case of an adopted child. Unless compelled by context or circumstances, the court will always construe a class gift to nephews and nieces as a gift confined to children of a brother or sister, and the mere fact that the testator or testatrix has chosen elsewhere in the will erroneously to describe as a nephew or a niece some person not strictly and properly so related to him or her, will not affect the general rule by admitting that person into the class. |
¶ 9 Re Daoust was followed in Appleby Estate v. MacDonald et al. (1992), 125 N.B.R. (2d) 204 (Q.B.) and Dexter Estate v. Murphy, [2003] N.B.J. No. 227, 2003 NBQB 234, aff'd [2004] N.B.J. No. 170, 2004 NBCA 36.
¶ 10 A different result was reached in Re Gareau Estate (1995), 9 E.T.R. (2d) 25 (Ont. Gen. Div.). In that case, the court stated that while the words "nieces" and "nephews" generally means nieces and nephews by blood, it concluded after a consideration of the surrounding circumstances to seek out the testator's intention, that in the case of that particular will, nieces and nephews included nieces and nephews by affinity as well as consanguinity.
¶ 11 In Re Butt (1986), 53 O.R. (2d) 297 (Ont. Surr. Ct.) the court was concerned with the meaning to be given to the words "niece" and "nephew" in the Succession Law Reform Act, R.S.O. 1980, c 488. Zalef Surr. Ct. J. noted at p. 301:
In looking over a number of dictionaries and the wills cases referred to in argument, I conclude that the words "nephews and nieces" in their primary meaning includes only those related by blood. However, in their secondary meaning and in common parlance they do include both classes. The use of these words in their grammatical and ordinary sense in s. 47(5), therefore, results in ambiguity. |
¶ 12 While Re Daoust suggests that in 1944, at least, there was is no doubt in contemporary English as to the strict and proper meaning of the words niece and nephew, the New Concise Oxford English Dictionary presently defines "nephew" as "a son of one's brother or sister, or of one's brother-in-law or sister-in-law" and "niece" as "a daughter of one's brother or sister, or of one's brother-in-law or sister-in-law". Davis Estate instructs that the intention of other testators is of little assistance in determining the intention of the testator in the particular case under consideration. I am satisfied that the words nieces and nephews can in their ordinary meaning apply to both the Holmes and Olsen families. The question remains as to what the Testator meant when he used those words in the Will.
¶ 13 Counsel for the Holmes family submits that there is no need to go beyond a reading of the entire Will to determine the intention of the Testator. He submits that the provision in the Will "I have not named any of my brothers or sisters in my last Will and Testament as I feel their children are in more need of the money than they are, and this would also have been the wish of my deceased wife" makes clear that it is only the children of the Testator's brothers and sisters that he wishes to benefit.
¶ 14 In my view, that clause does not make clear the Testator's intentions. It does no more than explain to his own siblings his decision not to benefit them. He may have felt no need to give a similar explanation to his wife's siblings. I find the clause provides little assistance in determining who the Testator intended by the phrase "nieces and nephews".
¶ 15 There is other evidence that assists in that regard. In the Testator's four prior wills he benefited both the Holmes and Olson families. In his August 3, 1972 will, which was prepared during his wife's lifetime, he left her his entire estate. If she predeceased him, the residue was to be divided equally between his siblings and his wife's siblings.
¶ 16 In the Testator's February 19, 1987 will, prepared after his wife's passing, half the residue of the estate was to be divided among certain of his wife's siblings, while the other half was to be divided among certain of his siblings. Prior to the preparation of this will the Testator had inherited his late wife's share of her father's estate.
¶ 17 In his October 27, 1989 will, the Testator again divided his estate between Olson and Holmes beneficiaries.
¶ 18 Six Olson beneficiaries swore affidavits on this application. Each affidavit references an ongoing relationship of varying degrees of closeness with "Uncle Cec". The material indicates the Testator called various Olson family members each year at Christmas and on other special occasions. The Testator clearly made an effort to stay in touch with many members of the Olson family.
¶ 19 The Testator did lose touch with some members of the Olson family and did not know where they resided. He requested assistance from another Olson family member who provided him with some addresses. The loss of contact gives context to the provision in the Will concerning missing nieces and nephews. There is no evidence that the Testator ever lost contact with any member of the Holmes family.
¶ 20 A unique aspect of this case is that the alleged ambiguity in the Will was brought to the Testator's attention in his lifetime. Ronald Holmes, who is the son of the Testator's older brother and the executor of the 1995 Will, deposes that he had discussions with the Testator in 2000 and 2001 and again in the spring of 2004 concerning the terms of the Will. Mr. Holmes says that he specifically brought to the Testator's attention the uncertainty of the phrase "all my nieces and nephews" and asked him whether he meant just his biological nieces and nephews or also those from the Olson side of the family. The Testator did not respond directly to Mr. Holmes' inquiries. The Testator told Mr. Holmes that he knew what the Will meant to him and he saw no problem with it.
¶ 21 On one occasion, Mr. Holmes brought to the Testator's intention that if he intended the residue of his estate to be split only amongst his biological nieces and nephews, it would be divided among eleven people, whereas if he also intended the Olson family members to share, the residue would be shared among twenty nine people, eighteen of whom, or about sixty two percent, were on the Olson side of the family and eleven of whom, or about thirty eight percent, were on the Holmes side of the family. When Mr. Holmes asked the Testator if he was aware of the arithmetic involved, the Testator just stared at him, nodded and said nothing. He did agree to consider having a new will prepared, but when Mr. Holmes later pressed the Testator about preparing a new will, he again indicated he was satisfied with the wording of the Will.
¶ 22 Having reviewed and considered the surrounding circumstances, I find that the Testator intended to benefit both the Holmes and Olson families. This finding is consistent with his earlier Wills in which both sides of the family benefited. It is also consistent with the Testator's ongoing relationship with various members of the Olson family. From his discussions with Mr. Holmes, the Testator knew that the Will could be interpreted to include both the Holmes and Olson families. If that was not his intention, it is inconceivable that he would not have changed the Will. Given all of the surrounding circumstances, I find that the phrase "all my nieces and nephews" is not limited to children of the Testator's brothers and sisters, but also includes the children of siblings of the Testator's late wife. In the result, the answer to the question "Does the phrase all my nieces and nephews include the children of the siblings of the Testator's late wife?", is yes.
¶ 23 Having answered yes to the first question, I must now consider whether the respondent Bruce Alfie Meadows is entitled to a share of the residue of the estate. Pursuant to the Will, if any of the deceased's nieces or nephews predeceased the Testator, that person's share was to be paid to the predeceased person's spouse. Mr. Meadows is the spouse of the late Patricia Meadows, who was the daughter of a sibling of the Testator's late wife. Ms. Meadows died in 1995. Mr. Meadows was convicted of her murder. Mr. Meadows has been served with this petition but did not appear or file a response.
¶ 24 The parties who appeared on the application submit that Mr. Meadows is not entitled to Ms. Meadows share of the estate because of the general rule of public policy which precludes a person from benefiting from a crime: Nordstrom v. Beauman (1961), 31 D.L.R. (2d) 255 (S.C.C.). I agree with that submission. Mr. Meadows is not entitled to Patricia Meadows' share of the estate.
¶ 25 The gift to the nieces and nephews is a class gift: Kingsberry v. Walters, [1901] A.C. 187 (H.L.). When a member of a class is disqualified from taking a share, the share will go to increase the shares of the surviving class members. In the result, Patricia Meadows' share of the estate should go to increase the shares of the surviving class members, being both the Olson respondents and the Holmes respondents.
COSTS
¶ 26 When the meaning of a will is in issue it is appropriate that the costs of all parties be paid out of the estate as a cost of administration: Lee v. Lee Estate (1993) 84 B.C.L.R. (2d) 341 (S.C.). That is the situation in the case at bar. The issues with respect to the meaning of the phrase "all my nieces and nephews" and the eligibility of the respondent Meadows to take were of a kind that the estate should bear the cost of resolving them. All parties appearing are entitled to special costs, payable out of the estate.
GOEPEL J.
QL UPDATE: 20070112
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