Rondel v Robinson Estate

2011 ONCA 493 (Released July 6, 2011)

Estates – Interpretation of a Will – Admissible Evidence

This appeal challenged the common law position on the inadmissibility of direct extrinsic evidence of a testator's intention in the face of an unambiguous will.

The testator, who owned property in Spain, England and Canada, executed a will in 2002 intended to deal only with her European property (the "2002 Spanish Will"). She granted a life interest in her London flat to the Appellant, with whom she had a long relationship. In 2005, the testator sent her lawyer drafting instructions regarding a Canadian will (the "2005 Canadian Will"). The instructions related to the "entire residue of [her] estate". Her lawyer drafted the will according to the instructions but did not inquire to as the testator's previous wills, the location of her assets or her significant relationships. The 2005 Canadian Will included a general disposition clause and a standard revocation clause, which revoked all previous wills. The lawyer reviewed the will, clause by clause, with the testator prior to its execution.

In 2006, the testator revised the 2005 Canadian Will to make a bequest of $1 million to the Appellant (the "2006 Will"); no further amendments were made. When the testator died, her lawyer, who was unaware of the 2002 Spanish Will or the testator's European assets, distributed the Canadian assets per the 2006 Will. The lawyer subsequently learned of the 2002 Spanish Will and the European assets.

The Appellant and the testator's lawyer brought applications for the interpretation and rectification of the 2006 Canadian Will, which had already been probated. Both applications were supported by affidavit evidence as to the testator's intention that the 2006 Will would deal only with her Canadian property and was not intended to revoke the 2002 Spanish Will. The Appellant deposed that the testator did not intend to revoke the 2002 Spanish Will and that the 2006 Will...