Daughter Receives $185,000 From Will for Value of Mother's Home - Home was Sold Before Mother's Death

Forbes v. Millard Estate 2017 BCSC 361

The testatrix died February 9, 2015, aged 91, and was survived by 3 children.  The will, which was made in September of 2000, detailed that her daughter, the petitioner in this action, was to receive “any property which I may own and be using as a home at the date of my death”.  At the time the will was made, she owned a home on Hornby Island, but it was later sold and a home in Courtenay, BC, was purchased.  The testatrix’s mental health declined after 2002 and by 2004 she was incompetent, could no longer live independently and she was then placed in a care home.  Due to the increasing cost of her care, the deceased’s attorneys, two of her children, under an enduring power of attorney, sold her property for $185,000. 

The dispute surrounded the bequest to Cherie Forbes of “any property which I may own and be using at the date of my death”.  As the property had been sold before her death, the testatrix did not own a home.  The specific issue in the petition was whether the petitioner should receive an amount equivalent to the proceeds of sale of the property as if the will had contained a specific gift to the petitioner of that amount.  The common law would normally point to the gift having adeemed, or failed, as there was a legal presumption the testator intended to revoke the gift.  But, WESA came into effect in March 2014 and provided an important section:

48 (1) In this section, "proceeds" means the gross proceeds at the time of disposition, and includes

(a) non-monetary consideration, and

(b) in the case of a gift, the fair market value of the gift.

(2) If property that is the subject of a gift in a will is disposed of by a nominee, the beneficiary of the gift is entitled to receive from the will-maker's estate an amount equivalent to the proceeds of the gift as if the will had contained a specific gift to the beneficiary of that amount.

(3) Subsection (2) does not apply if

(a) the disposition is made to carry out instructions given by the will-maker at a time when the will-maker was legally capable of giving instructions, or

(b) a contrary intention appears in the will.

Could WESA save this bequest to the daughter?  Yes, it certainly could. 

DECISION:  Cherie, the daughter, was entitled to receive, from the estate, an amount equivalent to the proceeds of the gift as if the Will had contained a specific gift to Cherie of that amount. 

The court found the words of the bequest identified the property in question and simply distinguished this property from other property, including other real property, that she may own or come to own.  The judge adopted the “large, robust approach” endorsed by the Ontario Court of Appeal in McDougald Estate, to ensure the intended purpose of the anti-ademption provision is respected.  The judge noted that, to conclude otherwise, would frustrate the very object of s. 48(2). 

The testatrix clearly wanted Cherie to have the property, or the capital it represented.  While the sale of the home may have been for perfectly logical reasons, the testatrix was incapable of changing her will.  The judge found the proceeds of the sale of the Courtenay property were captured by s. 48(2) of WESA and did not adeem. 

C.           Analysis

[35]        I am satisfied that, leaving aside other arguments for the moment, s. 48 is applicable to the situation arising in this case.  Section 186 of the WESAprovides that Part 4 of the Act (whichincludes s. 48) applies to a will, whenever executed, if the will-maker dies on or after March 31, 2014.

[36]        In this case the will-maker died on February 9, 2015, after the WESA came into force.  The fact that the will was made many years prior is irrelevant because s. 48 applies to a will whenever executed.  So on the plain language of s. 186s. 48 applies here.

[41]        The next question is whether this case falls within either of the exceptions to s. 48(2).  The respondents did not address this point but I will deal with it anyway out of an abundance of caution.

[42]        The first exception set out in s. 48(3) (where a nominee disposes of property in order to carry out the competently-given instructions of the will-maker) does not apply here because those facts are not present in this case.  The other exception is where a contrary intention appears in the will.

[43]        Section 4 of the WESA describes the requirements for finding a contrary intention; it must either appear in the instrument or arise from a necessary implication of the instrument.  I conclude there is no contrary intention in the Will itself or that arises out of a necessary implication of the Will.  In fact, Clause VII of the Will, where the will-maker states that even if Cherie does not live in the will-maker’s home, “she is to at least have the capital of my home to provide herself with a home in the community of her choice” bolsters the inference that Helen intended that her property not adeem.  Accordingly, I conclude there is nothing in the Will that expressly or impliedly indicates that the anti-ademption provision should not apply.

[44]        The final issue is whether, at the time of sale of Helen’s house, the property in question met the description set out in the Will (“any property which I may own and be using as a home at the date of my death”).  The respondents say it did not.  The petitioner says it did, but if it did not then that was only because Helen had been removed from her home involuntarily due to her diminished mental state.

[45]        The petitioner also referred to McDougald Estate, a case which had similar facts to those here.  In that case, the will-maker bequeathed to her sister certain real property, identified by address, but with the added words “owned by me”.  The property was not owned by the will-maker but was instead owned by her holding company, a company in which she owned all of the shares.  It was later sold by representatives of the will-maker who acted under the authority of a continuing power of attorney.  At the time of sale the will-maker lacked the capacity to manage her affairs.  After the will-maker passed away, two of the residuary beneficiaries maintained that the bequest had adeemed.  Among other submissions, they argued that the Ontario anti-ademption provision did not apply because the will-maker did not own the property in question.

[46]        In reasons reported at (2003), 2 E.T.R. (3d) 52 (Ont. S.C.J.), Wilson J., the judge at first instance, said:

46 The Act is intended to provide a structure to protect individuals who are incapable of managing their financial affairs. The wishes of the incapable person must, where possible, be respected.

47 Section 10 of the Interpretation Act, R.S.O. 1980, c. 219, provides that every Act "shall be deemed to be remedial" and directs that every Act shall "receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Act according to its true intent, meaning and spirit."

49 The Act and section 36 should be given a large, robust interpretation to ensure the intended purpose of the legislation is respected.

50 Often, individuals, particularly with vacation properties abroad hold these properties in a corporation to avoid potential tax problems and residency issues. An overly technical approach, as suggested by the respondents, would defeat the clear intentions and wishes of Mrs. McDougald. In my view, it matters not whether it was a corporation solely owned by Mrs. McDougald or it was Mrs. McDougald personally who owned and sold the personal use Property. Section 36 of the Act only says that the doctrine of ademption does not apply to "property," not "personally held property."

51 Mrs. McDougald in her will providing the bequest to her sister referred to the Property as being "owned by me." By the terms of the Will, if a property was held by a corporation, it was to be treated as if owned by the Testator personally to give effect to the specific bequests. There is clearly, in this case, an identity of interest between the Testator and the corporation that held her personally used Property.

52 Since Mrs. McDougald owned the corporation and provided for the disposition of its holdings in her Will, the fact that the corporation held Property does not affect the application of section 36 of the Act.

[Emphasis added.]

[47]        The Ontario Court of Appeal expressly agreed with those reasons.

[48]        I conclude that the words “any property which I may own and be using as a home at the date of my death” are words identifying the property in question and the phrase “using as a home at the date of my death” simply distinguishes this property from other property, including other real property, that she might own or come to own.  I come to this conclusion by adopting the “large, robust approach”, endorsed by the Ontario Court of Appeal in McDougald Estate, an approach that is necessary to ensure that the intended purpose of the anti-ademption provision is respected.  To conclude otherwise would, in my view, frustrate the very object of s. 48(2).  Here, Helen clearly wanted Cherie to have the property that was her home, or the capital it represented, and she gave clear and cogent reasons why.  While the actions of the respondents in selling that home may have been based on perfectly sensible considerations (and there is no suggestion that they acted in bad faith), at the time they did so Helen was incapable of modifying her Will.  To fail to give effect to the anti-ademption provision in these circumstances would, in my view, inappropriately frustrate Helen’s clear intentions.

[49]        For those reasons I conclude that the sale of the Courtenay property is captured by s. 48(2) of the WESA and thus the bequest to Cherie did not adeem.