



COURT OF APPEAL FOR ONTARIO

CITATION: McLaughlin v. McLaughlin, 2016 ONCA 899

DATE: 20161128

DOCKET: C60802

Simmons, Pepall and Huscroft JJ.A.

BETWEEN

Daniel
McLaughlin, Estate Trustee of the

Estate
of Elizabeth Anne McLaughlin



Applicant

(Appellant)

and

Thomas McLaughlin and Judith Corrado

Respondents

(Respondents in
Appeal)



and

Michael J. Walsh

Intervenor

(Respondent in Appeal)



APPLICATION UNDER Rule 74.04
Rules of Civil Procedure
, RRO 1990,
Reg. 194

R. Dean Allison, for the appellant

Archie J. Rabinowitz and Douglas B. Stewart, for the
intervenor

Judith Corrado, in person

Heard and released orally: November 18, 2016

On appeal from the judgment of Justice David Price of the
Superior Court of Justice, dated June 30, 2015, with reasons reported at
2015 ONSC 4230,
10 E.T.R. (4th) 10,
and from the
costs order, dated January 20, 2016, with reasons reported at 2016 ONSC 481
.

ENDORSEMENT

[1]

The issues on appeal concern the validity of a will. The testatrix, Elizabeth
Anne McLaughlin, died on April 23, 2012. On June 16, 2010, she executed a
primary and a secondary will for which she had provided instructions to her
long-time solicitor who had prepared several previous wills for her. The
secondary will was intended to deal with her house. The primary will was
intended to deal with the balance of her estate.

[2]

Unfortunately, as the result of clerical errors, the secondary will
contained some mistakes. It included a revocation clause revoking all other
wills, which included the primary will; it repeated specific bequests contained
in the primary will; and it did not contain a disposition of the residue of the
estate such that an intestacy would be created.

[3]

On July 8, 2014, Lemon J. made an order rectifying the secondary will
nunc
pro tunc
such that the revocation clause was amended to exclude the
primary will from its operation, the duplicated specific bequests were deleted
and the intended residue clause was included:
McLauglin Estate v.
McLaughlin,
2014 ONSC 3162, 99 E.T.R. (3d) 71. Lemon J. made this order
because he was satisfied that the testatrix had not read the secondary will
when she signed it but that the rectified secondary will corresponded with her
instructions to her solicitor, which she had entrusted him to carry out. His
order was not appealed.

[4]

On a subsequent application to remove an objection to the appointment of
an estate trustee for the primary will, of his own initiative, the application
judge embarked on an examination of the validity of the secondary will.
Ultimately, he found that the secondary will was not valid based on Lemon J.s
finding that the testatrix did not read it or have knowledge of or approve of
its contents.

[5]

In our view, the judgment of the application judge cannot stand in this
case. It was implicit in Lemon J.s order for rectification of the secondary
will, which was made
nunc pro tunc,
that he had determined that the
secondary will is valid.

[6]

The application judges decision undermined that of Lemon J., ignored
his own and Lemon J.s findings of the testatrixs intentions and improperly
created an intestacy in circumstances where the evidence resulted in an
opposite conclusion.

[7]

Indeed, the application judges reasoning is circular. Lemon J.s
decision to rectify the secondary will was premised on his finding that the secondary
will had not been read. That finding cannot then be used to find the secondary
will as rectified invalid.

[8]

The appeal is allowed and the judgment of the application judge holding
the secondary will invalid is set aside. In its place, we substitute an order
holding the secondary will valid.

[9]

The application judge also ordered that there should be a mini-trial to
address proof of the primary will in solemn form. While that issue is not
squarely before us, particularly in the light of our decision, the fact that no
one challenged the capacity of the testatrix before Lemon J. and his finding of
the absence of suspicious circumstances, we question whether there is any need
for further proceedings in this matter.

[10]

Leave
to appeal the costs awarded to the respondents who appeared in person is
granted and the costs order as it relates to them is set aside: see
Fong v.
Chan
(1999)
, 46 O.R. (3d)
330 (C.A.).

[11]

We
note that the respondent, Thomas McLaughlin, was not present today and is
apparently hospitalized. However, no adjournment was sought on his behalf and
material was filed purporting to authorize his sister, Judith Corrado, to act
in their collective best interests. All parties present, including Judith
Corrado, wished to proceed today.

[12]

The
appellant claimed $30,490 on a full indemnity scale for costs of the appeal. We
consider this amount high based on the record before us. Costs of the appeal
are to the appellant on a partial indemnity scale fixed in the amount of
$10,000 inclusive of disbursements and applicable taxes payable by the
respondents. The intervenor did not seek costs and none are awarded.





Janet Simmons J.A.

S.E. Pepall J.A.

Grant Huscroft J.A.


