One of the most common aspects of estate law that leads to estate litigation is what a testator meant to provide in their will. Sometimes, people might find they have not been left with what they expected from the death of a loved one, while at other times, something may have been omitted entirely from a will, and the parties want to determine what would happen with an asset.

In a recent decision from Ontario’s Court of Appeal, the court had to focus on one particular line in a will and whether or not the asset being described existed, and if so, if one of the testator’s beneficiaries was able to benefit from what the will said about the asset. We’ll get into the details below. The decision is an excellent example of how courts might interpret a testator’s wishes when looking at a will.

Will allows son first opportunity to purchase a “farming business”

The testator was 95 years old when she passed away. She had survived her husband, who passed away in 1994 but left behind six children. The testator and her husband had both worked as school custodians, but they also owned and operated a 66.54-acre hobby farm, which served as a second source of income. At one time or another, the farming operations carried out on the property include livestock such as cattle, pigs, rabbits, and chickens and crops such as oats, barley, soybean, and wheat. The family stopped working with livestock in 1992, and following the death of her husband two years later, the testator began to rent out the farmland to her eldest son, “HV,” pursuant to a series of two-year lease agreements.

Before HV took over the farm operation, the other children helped with it while they grew up. But by the time the testator stopped working on the farm herself, her other children had grown up and either moved away or otherwise stopped working the farm. The will in question was drawn up in 1985. At this time, HV was 40 years old and was working on the farm. The leases for the farm were renewed every other year for what the court described as “valuable consideration” right up until the death of the testator. The mother lived on the farm until 2017 when she moved into a retirement home. However, even after that, she claimed farming income on her tax return until the last years of her life.

The relevant clause of the will states,

If my son, (HV), shall be living at the time of my death, my Trustees shall sell the farming business carried on by me at R.R. #7 Brantford, Ontario, in the Township of Onondaga, in the County of Brant, to my son, (HV), as soon as convenient for the price of $85,300.00 or such lower price to be agreed upon by my Trustees and my son, having regard to the assessed value of the lands included hereby at the time of my death and the assistance given me by my son in the conduct of the farming business … And I desire that for the purpose of this clause the expression of my farming business shall include all assets, stock, plant, liabilities, in connection therewith on the other and it shall include the estate in fee simple of the farm…

What led to the matter being before the courts was that HV wanted to purchase the farm for $85,300. Still, some of his siblings argued that the farm was not a “farming business” and, therefore, the clause in the will that addresses it and provides HV with the right to purchase it should not be enforceable.

Analyzing the intentions of the testator

When a lower court originally heard the matter, the decision stated that the will referred to the farm as it operated when the will was drafted in 1985. The application judge extended this to conclude that the farming business, as it operated in 2019 when HV was leading the land, was different from what the testator referred to in her will. As such, the application judge ruled that HV had no right to purchase the farm.

The court was critical in this approach, writing that the standard of review for an application judge’s interpretation of a will is the same as that of a contract, referencing a 2019 decision from the Ontario Court of Appeal. This means that the will should be interpreted in light of all the surrounding circumstances to determine the testator’s true subjective intentions.

The court also wrote that the Succession Law Reform Act contains a presumption the application judge should have followed. This presumption is that “[e]xcept when a contrary intention appears by the will, a will speaks and takes effect as if it had been made immediately before the testator’s death with respect to … the property of the testator.”

In applying this approach to the facts, the court asked whether it was accurate that the testator was carrying on a farm business at the time of her death. She owned the land and accepted payment from HV in exchange for his right to work it. While she did not physically work on the farm herself in the last years of her life, she did receive income for work done on the farm. The court said that reading these facts would lead someone to believe that she was carrying on a farm business at the time of her death, and nothing in the will displaced this position. The court thus overruled the application judge’s decision and ordered that HV be able to purchase the farm under the conditions outlined in the will.

Tierney Stauffer in Ottawa, Cornwall, Kingston and North Bay Can Help You With Issues Related To Wills, Estates, And Trusts

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