There are times in the world of estates when the circumstances of life unfold in such a way that a will needs to be interpreted in light of the facts that occurred. Barbeau Estate, 2012 ONSC 3249 (CanLII) was just such a case. In it, the Estate Trustee asked the Court to interpret two clauses in the late Rhéal Barbeau’s will to determine whether his common‑law spouse survived him “for a period of thirty days”.
Mr. Barbeau died on September 17, 2011, at 5:40 a.m. leaving the residue of his estate to his common‑law spouse Germaine Raymond, provided she survive him for a period of thirty days. Ms. Raymond died on October 17, 2011, at 4:45 p.m.
The following clauses in Mr. Barbeau’s will must be interpreted:
3. (c) Provided she survives me for a period of thirty days, to pay or transfer the residue of my estate to my common-law spouse, GERMAINE RAYMOND, for her own use absolutely.
3. (d) Should my said common-law spouse predecease me or survive me but die within a period of thirty days after my death, I direct my Trustee to transfer the residue of my estate to the daughter of my common-law spouse, MARY CURRIE, for her own use absolutely. [emphasis added]
These clauses are known as survivorship clauses and are very often included in wills to avoid the application of section 55 of the Succession Law Reform Act (Ontario) and to avoid the imposition of two sets of administration taxes and two sets of estate administration costs in a situation when the testator and the beneficiary die within a short period of each other. Without this type of provision or section 55, even if a beneficiary survives the deceased by only 5 minutes, the entire estate or particular gift(s), as the case may be, will pass to the survivor and then immediately pass again to the beneficiaries of the survivor’s estate, thereby incurring double administration taxes and costs. Thus, the survivorship clause essentially says that a beneficiary must qualify for a gift by surviving the deceased by a certain period of time, which is very often 30 days. If the testator does not include a survivorship clause, section 55 will apply, which provides that if two or more persons die at the same time or in circumstances where it is impossible to determine who survived the other(s), they will both or all be deemed to have predeceased the other(s).
In the case at hand, weighing in the balance was whether Mary Currie would inherit under Mr. Barbeau`s will because her mother, Ms. Raymond, did not qualify for the gift by surviving for 30 days after Mr. Barbeau`s death OR whether all five of Ms. Raymond`s children would inherit the gift given under Mr. Barbeau`s will because Ms. Raymond had so qualified allowing the gift to vest in her and therefore be distributable out of her estate.
Thus, the timing of Ms. Raymond’s death presents a somewhat frustrating situation: most would think that the chances of a surviving beneficiary dying so close to the 30-day mark would be very unlikely. Nevertheless, the case presented an interesting analysis about interpretations of time to determine whether she met the qualification to inherit under the will.
The analysis included a look at various definitions of “day” including the following from Black’s Law Dictionary by Joseph R. Nolan and Jacqueline M. Nolan‑Haley, 6th ed (West Publishing Co., 1990) at p. 396:
1. A period of time consisting of twenty‑four hours and including the solar day and the night.
2. The period of time during which the earth makes one revolution on its axis.
3. The space of time which elapses between two successive midnights.
4. The whole or any part of period of 24 hours from midnight to midnight.
The Court also looked at Rule 3.01(1)(a) of the Rules of Civil Procedure (Ontario), Reg. 174 where the computation of days is outlined as follows:
3.01 (1) […]
(a) where there is a reference to a number of days between two events, they shall be counted by excluding the day on which the first event happens and including the day on which the second event happens, even if they are described as clear days or the words “at least” are used;
Interestingly, the Court also considered the principle outlined in Day Estate (Re) (1982), 13 E.T.R. 95 that fractions of a day are not recognized in law. In applying the analysis in that case, the calculation of the thirty day period would start to run with the first day being September 18, 2011, the day following Mr. Barbeau’s death. Ms. Raymond died at 4:45 p.m. on October 17, which is partway through the thirtieth day.
In the end, the Court followed the age-old principle that the most important factor in interpreting a will is the intention of the testator. Since Mr. Barbeau had apparently concentrated his thoughts on the possibility that his common‑law spouse, Ms. Raymond, would not survive him for thirty full days, excluding the date of his death, the Court found that the testator (Mr. Barbeau) would have intended the beneficiary to be Mary Currie as he named her as the alternate beneficiary in paragraph 3(d) of his will.
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Andrea Kelly, Lawyer, has extensive experience in wills, trusts, powers of attorney and estate administration matters. She provides clients with a high standard of timely professionalism and expertise, incorporating a very thorough fact finding process. This is quite often enlightening for her clients and facilitates individually tailored services. If you would like to know more, feel free to use the easy contact form or read Andrea’s bio.