Wrongly Described Bequests

no longer existsIf  the court comes to the conclusion that the testator intended to pass a bequest, and can determine what that something is, then the fact that the testator wrongly described the bequest  in his or her  will, does not prevent the will taking effect in regard to the subject matter intended by the testator.

The principle may be applied in whatever part of the description the error occurred

 

 

Baxevandis Estate case( 2007 BCSC 1657) in its entirety as it is a good summary of the topic of abatement, and specifically the issue of where a specific gift abates and is sold and there is a surplus of funds after the liabilities are paid, who is entitled to the surplus?

 

The case also discusses the difference when a gift is said to abate as opposed to the gift having adeemed, when in both cases, the gift no longer exists at the time of death.

Any property which has to be sold to satisfy creditors is said to abate, rather than to adeem.

The court held that the balance of the proceeds from the sale of abated property goes to the divisee of the abated property, and not into the residue.

 

Background

[1] The deceased, Grammata Margaret Baxevanidis, died on May 24, 2004 (the “Deceased”).

[2] The Deceased left a will dated June 25, 2002 (the “Will”), which was granted probate on October 28, 2004.

[3] During her lifetime, the Deceased had two main assets: the home she lived at in Vancouver, British Columbia (the “Home”) and the home she owned in Vancouver, British Columbia that was rented to various tenants (the “Rental Property”).

[4] The Deceased’s daughter, Agapie Kennell, (the “Daughter”), had lived with the Deceased in the Home until the Daughter was 40 years old, during which time she provided the Deceased with care and companionship. Because of this, the Deceased promised the Daughter to gift to her the Home.

[5] However, during her lifetime, the Deceased transferred the Home to her son, Athanasios Dennis Baxevanidis, also known as Dennis Baxevanidis (the “Son”). The Deceased then promised her Daughter that the Rental Property would be given to her in the Deceased’s Will instead.

[6] In her Will, the Deceased gifted the Rental Property to the Daughter and directed that the remainder of her assets be divided equally between the Son and the Daughter.

[7] At the time of death, the Deceased’s estate consisted of the Rental Property, a real property located in Point Roberts (the “Point Roberts Property”), various bank accounts, a Registered Retirement Income Fund (“RRIF”), and a Canada Death Benefit.

[10] The petitioner, Jimmy Malamas, is the executor of the Deceased’s Will (the “Executor”).

[11] On May 7, 2007, the Canada Revenue Agency reassessed the Deceased’s income tax return concluding that a further $71,122.47, plus interest, was owed by the estate.

[12] The exact amount of the estate’s debts is still unknown. However, it is likely that the estate’s assets (not including the Rental Property) are insufficient to satisfy the whole debt.

[13] The Daughter has agreed to either loan or gift the appropriate sum to the estate to ensure that the Rental Property does not have to be sold in order to pay the estate’s debts. She has paid $74,000.00 into her lawyer’s trust account for this purpose.

Abatement

II. The Executor seeks advice and directions from the court, under s. 86 of the Trustee Act, R.S.B.C. 1996, c. 464, as to the following questions:

(i) If the Rental Property must be sold to satisfy debts of the estate, do the net proceeds of that sale fall into the general residue of the estate to be split equally between the Son and the Daughter?

(ii) If the answer is yes, can the Executor transfer the Rental Property to the Daughter subject to a charge with respect to the outstanding debts of the estate, pursuant to s. 79 of the Estate Administration Act, R.S.B.C. 1996, c. 122, without any regard to the Son’s possible interest?

(iii) Can the Daughter pay the estate debts herself, without a sale of the Rental Property and maintain the specific gift of the Rental Property to her?

(iv) Can the Executor borrow funds from the Daughter or anyone else, secured by way of a mortgage on the Rental Property, to pay the estate debts, pursuant to s. 67 of the Estate Administration Act?

III. Decision

(i) If the Rental Property is sold, do the proceeds convert to the estate’s residue?

[14] According to James MacKenzie, ed., Feeney’s Canadian Law of Wills, 4thed. (Toronto: Butterworths, 2000) at para. 15.3:

An estate may be legally unable to satisfy a legacy or devise not only because the property has ceased to exist or has ceased to exist in substantially the same state (not only that is, by reason of an ademption by conversion), but also because of the testator’s debts which must be satisfied out of the estate property. However, this latter situation is technically referred to as an abatement. Any property which has to be sold to satisfy creditors is said to abate, rather than to adeem. [emphasis mine]

[15] In Thompson (Guardian ad Litem of) v. Thompson Estate, 2005 BCSC 1814, 22 E.T.R. (3d) 268, Melnick J. at para. 15 described the law, as follows:

Unless there is a contrary intention in the Will, “the order in which assets are liable to pay debts is determined by well defined rules” (A.H. Oosterhoff,Oosterhoff on Wills and Succession, 5thed. (Scarborough: Carswell, 2001) at 499). The rules are described in James Mackenzie, Feeney’s Canadian Law of Wills, 4thed. looseleaf, (Markham: Butterworths, 2000) at para. 8.52:

In the payment of debts the residuary estate must first be exhausted and residuary personalty and realty are liable rateably for the debts. After the residuary estate has been exhausted, general legacies abate pro rata, then demonstrative and specific rateably after that, and finally devises. Devises abate last because of the general rule that personalty is primarily liable for the payment of debts.

[16] At para. 16 in Thompson, supra, Melnick J., quoting from Smith Estate, Re, 2003 SKQB 361, [2004] 7 W.W.R. 516, set out the order of abatement, as follows:

First, residuary personalty;

Second, residuary real property;

Third, general legacies, which include pecuniary bequests from the residue;

Fourth, demonstrative legacies, that is bequests from the proceeds of a specific asset or fund not forming part of the residue; [See Re Culbertson (1967), 62 D.L.R. (2d) 134 (Sask. C.A.)]

Fifth, specific bequests of personalty;

Sixth, specific devises of real property.

[17] The types of legacies have been described in Feeney’s Canadian Law of Wills, supra at para. 8.51, as follows:

A general legacy is a gift out of the residuary estate after the payment of debts and specific legacies. The most usual kind of a general legacy is a pecuniary legacy. A specific legacy is one which the testator has separated from the residuary estate in favour of a particular legatee and since the testator has shown that he or she intends that the legatee shall take the specific thing unconditionally, while it may have to be sold to pay debts, it will not abate to meet debts until the residuary estate and general legacies have been exhausted.

[18] In Thompson, supra, a number of real estate lots (Lot 1, 2, and 3) formed the largest part of the deceased’s estate along with a truck, a boat, and the contents of some bank accounts. There were three beneficiaries under the will, namely the wife, and two of the deceased’s daughters. The will provided that Lot 1 was to go to the wife, while Lots 2 and 3 were to be sold and the proceeds divided more or less equally amongst the three beneficiaries.

[19] As of the date of the hearing, legal title of Lot 1 remained with the executor for the estate, while both Lots 2 and 3 were sold in accordance with the deceased’s wishes. The estate owed significant debts. A large portion of the proceeds of the sale of Lots 2 and 3 and various other funds received after the deceased’s death had been used to pay the debts of the estate. However, after the debts were satisfied, there remained some cash.

[20] The court held that as there was not enough money in the estate to pay all the gifts made in the will, some or all of the gifts had to abate and be reduced pro rata. At issue was the order in which the assets of the estate were liable to pay its debts.

[21] The court found that the contents of the bank accounts formed the residue of the estate and were first liable for the debts of the estate (even though the will contained no residuary clause, which meant that the residue would pass according to the law of intestate succession). The truck and boat were both gifted to the wife as general legacies and were liable to pay the debts of the estate after the residue was abated, but prior to Lots 1, 2 and 3. The court found that the gift to the wife of Lot 1 was clearly a devise of real property and it was therefore last in line for liability for the estate’s debts. What cash remained in the estate after payment of the debts was solely attributed to the sale of Lots 2 and 3. The court held that the remaining cash did not fall into residue, but was to be divided equally by the three beneficiaries in accordance with the will.

[22] Thus, even though the legacies of Lots 2 and 3 abated, the remainder of the proceeds from the sale of these lots did not fall into residue.

[23] In Patry Estate v. Robinson, 2003 ABQB 707, [2004] 2 W.W.R. 378, the testator left a vehicle to his common law wife, “free of all encumbrance”. The residue of his estate was to be shared equally by his three children. At the time of his death, the vehicle was valued between $24,500.00 and $26,000.00. However, the outstanding loan on the vehicle was $29,000.00. The executrix returned the vehicle to the car dealership and they extinguished the loan. There was only $13,316.26 left in the estate after payment of estate taxes and other debts.

[24] Coutu J., at para. 12, relying on Feeney’s Canadian Law of Wills, supra,found that because the vehicle was a specific bequest, it did not abate until the residuary estate and general demonstrative legacies had first been exhausted. Therefore, the court found that the estate’s residue was subject to abatement before the gift of the vehicle. This meant that the wife’s claim as specific legatee took priority to the claims of the children as residual beneficiaries. The wife was entitled to the $13,316.26 left in the estate.

[25] The court ruled that even though the vehicle, as a specific bequest, had to be sold to satisfy the estate’s debts, the gift itself did not fail nor did the proceeds of sale fall into the estate’s residue.

[26] Tamboline v. Dobbs(1998), 25 E.T.R. (2d) 50 (B.C.S.C.) is a Wills Variation Act action, which also required the court to consider the issue of abatement and the estate’s tax liability.

[27] The testator’s daughter was named beneficiary of certain property and claimed that tax liability relating to disposition of property should be borne by the estate. The testator had also left a number of specific bequests including real property as well as stocks, bonds and jewellery. In addition, the residue was to be divided equally amongst two of the testator’s three children. The estate’s debts exceeded the value of the property that was left as residue.

[28] Pitfield J. found at para. 59 that “income tax obligations arising as a consequence of death are legally enforceable debts to be discharged by the executor. In the absence of any specific direction in the will, there is no reason to conclude that the tax burden should fall upon any asset, not in residue, to the exclusion of any other.”

[29] Pitfield J. also found that after the residue was exhausted to pay the estate’s debts, the specific bequests of land, jewellery, shares, etc. were to bear their “rateable proportion of all debts of the estate” payable as a consequence of death, including taxes, interest and penalties but excluding mortgages.

[30] In the case at bar, clause 3(a) of the Will states, as follows:

I GIVE, DEVISE AND BEQUEATH all my property of every nature and kind and wheresoever situate, including any property over which I may have a general power of appointment to my Trustees upon the following trusts:

(a) To pay out of and charge to the capital of my general estate my just debts, funeral and testamentary expenses and all estate, inheritance, succession, probate and other taxes, duties and fees whether imposed by or pursuant to the law of this or any other jurisdiction whatsoever, that may be leviable or payable in connection with any property passing … Without imposing any obligation upon my Trustees to do so I hereby AUTHORIZE them to pay out of and charge to the capital of my general estate any and all tax on capital gains which may be deemed to arise on my death or on any subsequent disposition of assets which may be made or deemed to be made by my Trustees during their administration of my estate.

[emphasis added]

[31] Applying the above noted law to the facts in this application, the Point Roberts Property, the various bank accounts, the RRIF, and the Canada Death Benefit form the residue of the Deceased’s estate, while the Rental Property is properly described as a specific devise of real property.

[32] Further, the income tax payable by the estate to the Canada Revenue Agency is an obligation arising as a consequence of the Deceased’s death and is thus a legally enforceable debt to be discharged by the Executor.

[33] There is no specific direction in the Will that the estate’s income tax or other debt attach specifically to the Rental Property, and thus, must be paid out in accordance with the rules described in Thompson, supra.

[34] The Rental Property, as a specific devise of real property, is last in line for liability of the estate’s debts.

[35] Thus, the estate’s debts must be satisfied by exhausting the assets contained in the residue first, and only then would the gift of the Rental Property abate.

[36] Accordingly, I find that if the Rental Property must be sold to satisfy the debts of the estate, the net proceeds do not fall into the residue of the estate, but must be transferred to the Daughter.

[37] Given my answer to the first question, it is not necessary to answer question (ii).

(iii) Can the Daughter pay the estate debts herself, without a sale of the Rental Property and maintain the specific gift of the Rental Property to her?

[38] In Holmes Estate (Re), 2007 BCSC 51, 29 E.T.R. (3d) 67 at para. 6, Goepel J. states, as follows:

The primary objective for the court in interpreting a will is to determine the testator’s intention. The will must be considered in its entirety. If there is no ambiguity on the face of the will then it should be interpreted according to the ordinary meaning attributed to the words used. Only if there is an ambiguity should the court resort to evidence of surrounding circumstances. In the leading case of Perrin v. Morgan, [1943] A.C. 399 (H.L.) the court stated at p. 406:

[T]he fundamental rule in construing the language of the will is to put on the words used the meaning which, having regard to the terms of the will, the testator intended. The question is not, of course, what the testator meant to do when he made his will, but what the written words he uses mean in the particular case – what are the “expressed intentions” of the testator.

In Davis Estate v. Thomas (1990) 40 E.T.R. 107 (B.C.C.A.) the court adopted the words of Mr. Justice Laidlaw in Re Burke (1959), 20 D.L.R. (2d) 396 at 398 (Ont. C.A.) at p. 110 as follows:

The Court is now called upon to construct a particular document and at the outset, I emphasize what has been said before so frequently. The construction by the Court of other documents and decisions in other cases respecting the intention of other testators affords no assistance whatsoever to the Court in forming an opinion as to the intention of the testator in the particular case now under consideration. Other cases are helpful only insofar as they set forth or explain any applicable rule of construction or principle of law. Each Judge must endeavour to place himself in the position of the testator at the time when the last will and testament was made. He should concentrate his thoughts on the circumstances which then existed and might reasonably be expected to influence the testator in the disposition of his property. He must give due weight to those circumstances in so far as they bear on the intention of the testator. He should then study the whole of the contents of the will and, after full consideration of all of the provisions and language used therein, try to find what intention was in the mind of the testator. Where an opinion has been formed as to that intention, the Court should strive to give effect to it and should do so unless there is some rule or principle of law that prohibits it from doing so.

[39] In the instant case, clause 7(ii) of the Will provides, as follows:

7. IN ORDER THAT my wishes may be more effectively carried out I hereby give my Trustees the following additional powers:

(ii) To compromise, settle and waive any claim or claims at any time due to or due by my said Estate for such consideration and upon such terms and conditions as my Trustees may deem advisable. [emphasis mine]

[40] On my interpretation of the Will, I find that clause 7(ii) contains a broad power to the Executor to accept funds from the Daughter to preserve the promise the Deceased made to the Daughter during her lifetime so that the Daughter can receive her bequest of the Rental Property.

[41] Given the answer to question (iii), I do not find it necessary to answer question (iv).

IV. Conclusion

1. The answer to question (i) is no.

2. The answer to question (iii) is yes.

Trevor Todd

Trevor Todd is one of the province’s most esteemed estate litigation lawyers. He has spent more than 40 years helping the disinherited contest wills and transfers – and win. From his Kerrisdale office, which looks more like an eclectic art gallery than a lawyer’s office, Trevor empowers claimants and restores dignity to families across BC. He is a mentor to young entrepreneurs and an art buff who supports starving artists the world over. He has an eye for talent and a heart for giving back.

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