2010 BCCA 374 MacLean Estate v. Christiansen
COURT OF APPEAL FOR BRITISH COLUMBIA
Citation: MacLean Estate v. Christiansen,
2010 BCCA 374
For many years, marriage has revoked a will unless the will was made in contemplation of that marriage this has caused untold hardships and will be abolished under the new WESA laws to come into effect this spring.
The BCCA examined a will using the word spouse, but not actually saying the will was made in contemplation of the marriage
A sensible decision, particularly with such a significant change in the law coming soon
 The principal issue in this appeal is whether the will of Gordon William MacLean was revoked by his subsequent marriage to Karen Christiansen. The appellant trustee and executor, a solicitor, prepared the will with the knowledge that Mr. MacLean intended to marry Ms. Christiansen. Through inadvertence, he failed to include as a term of the will the customary declaration contemplated by s. 15(a) of the Wills Act, R.S.B.C. 1996, c. 489, that the will was made in contemplation of the marriage. Absent such a declaration, a will is revoked pursuant to s. 14(1 )(a) of the Wills Act.
 The facts are not disputed.
 Mr. MacLean was a portfolio manager with RBC Dominion Securities in Kelowna, B.C. He had four children, one from his marriage to his first wife, Linda, two from his marriage to his second wife, Beverly, as well as the daughter of Beverly, whom he adopted. The children did not appear at the hearing of the appeal given the appellant’s position that he would not seek costs payable from the estate and would abide by any court order, including one that he was personally liable for costs.
 Mr. MacLean, who was then separated from Beverly MacLean, met Ms. Christiansen, a chartered accountant, in April 2003. In about August 2003, they began co-habiting in a marriage-like relationship.
 In early 2004, Mr. MacLean had medical tests that indicated he had suffered a heart attack, which led to discussions with Ms. Christiansen about his health, their relationship, and the disposition of his estate. During the summer of 2006, they sought and obtained estate planning advice from a will and estate consultant at RBC Dominion Securities.
 In December 2006, Mr. MacLean and Ms. Christiansen announced their marriage engagement. They set the marriage date at 11 August 2007.
 The appellant had been Mr. MacLean’s solicitor since March 1997. He met with Mr. MacLean on 21 February 2007 to discuss the preparation of his will. Mr. MacLean provided the appellant copies of the estate planning advice letter from RBC Dominion Securities; the Supreme Court order concerning the division of assets following his divorce from Beverly MacLean in April 2005; and a typed summary of Mr. MacLean’s notes concerning the disposition of his estate
 The appellant prepared the will which was signed by Mr. MacLean on 22 June 2007. The appellant did not advise Mr. MacLean of the application of ss. 14 and 15 of the Wills Act even though it was clear to him that Mr. MacLean expected the will to survive his marriage.
 The will appointed the appellant as executor and trustee. The will directed that certain
specific bequests be paid or delivered and created educational trusts for two of his children,
after which fifty percent of the remainder of the estate was to be transferred to
Ms. Christiansen as trustee and beneficiary of a spousal trust. The remainder of the estate was
divided into four equal shares to be held in trust for each of Mr. MacLean’s children. Upon the
death of Ms. Christiansen, the balance of the spousal trust was to form part of the children’s
 The will refers twice to Ms. Christiansen as Mr. MacLean’s “spouse”:
clause 3.b “To deliver to my spouse, KAREN CHRISTIANSEN (“Karen”), if she survives me for thirty (30) days …”
clause 3.g “I appoint Karen as the trustee (the “Spousal Fund Trustee”) of the Spousal Fund …”
 Mr. MacLean and Ms. Christiansen were married on 11 August 2007. While on their honeymoon in Italy, Mr. MacLean suffered a heart attack. He was transported to Kelowna where he died on 16 November 2007 without regaining consciousness.
 The appellant brought a petition in the Supreme Court seeking a declaration as to whether, on a true construction of the will, it was revoked by Mr. MacLean’s subsequent marriage to Ms. Christiansen.
 The petition was heard on 28 July 2009. In reasons pronounced on 27 August 2009 and indexed as 2009 BCSC 1159, the chambers judge dismissed the petition.
 The chambers judge applied the reasoning from two B.C. Supreme Court decisions, Re Pluto (1969), 6 D.LR. (3d) 541, and Klassen Estate (Re),  B.C.J. No. 414, that held that ss. 14 and 15 of the Wills Act must be strictly construed and, as summarized by the chambers judge, “required that a will contain an express declaration that it was made in contemplation of the marriage to the beneficiary named in the will and to whom the testator was subsequently married” (at para. 12).
 The chambers judge also referred to Ratzlaff Estate (Re), 2002 SKCA 53, 212 D.L.R. (4th) 258, leave to appeal to S.C.C. denied  S.C.C.A. No. 254. He found that Ratzlaff stands for the proposition that once a declaration to the effect that the testator intended to
marry is found in the will, “extrinsic evidence may be admitted to identify the person in contemplation, should there be an ambiguity in that regard” (para. 16).
 The chambers judge concluded that reference to “my spouse, Karen Christiansen” was not a declaration of intention to marry Ms. Christiansen since Ms. Christiansen was, at the time the will was executed, the “common law” spouse of Mr. MacLean. In the result, the chambers judge held:
 The Wills Act is not ambiguous. It speaks of the consequences associated with marriage. Marriage is the lawful union of one person with another. A common law relationship is not marriage. A will cannot survive the conversion of a common law relationship to one of lawful marriage absent the finding of a declaration within the will that it is made in anticipation of that marriage, and the conversion of that relationship to one of legal marriage. In this case, the only reference to the status of Ms. Christiansen, then and in the future, is the word “spouse” contained in clause 3.b., and that is not sufficient.
 The order thus provides that the will was revoked by marriage. The legal result is that Mr. MacLean’s estate falls to be distributed on intestacy.
 The appellant contends that the chambers judge erred in not finding that the use of the term “spouse” in conjunction with the creation of the spousal trust in favour of Ms. Christiansen, together with the extrinsic evidence before the court, was sufficient to establish that it was Mr. MacLean’s intention that the marriage to Ms. Christiansen would not revoke the will.
 Ms. Christiansen opposes the appeal on the basis that the law in this province is clear and well-settled – in the absence of a declaration that the marriage is contemplated, the marriage of a testator revokes any prior wills.
 The Wills Act reads in relevant part:
14(1) A will or part of a will is revoked only by one of the following: (a) marriage of the testator, subject to section 15;
15 A will is revoked by the marriage of the testator, unless
(a) there is a declaration in the will that it is made in contemplation of the marriage; or…
 As I have noted, the chambers judge interpreted the word “declaration” in s. 15 to require an express declaration that the will was made in contemplation of the marriage. In this respect, the chambers judge was constrained to follow the two decisions to like effect in the Supreme Court: Re Pluto and Re Klassen. He narrowly interpreted the decision in Ratzlaff to stand for the proposition that once a declaration of an intention to marry is found in the will, the court may then look to extrinsic evidence to identify the person the testator contemplates marrying.
 In my opinion, the limited meaning given to Ratzlaff is not in accord with the reasons of the court.
 In Ratzlaff, the Saskatchewan Court of Appeal had to interpret a paragraph in Mr. RatzlafFs will that stated “if at the time of my death I am legally married, then … I specifically bequeath to my wife the sum of $10,000 for each year or portion thereof we have cohabited together as man and wife.” The residue was divided equally among his three sons. His three daughters were not provided for in the will.
 The will was executed in February 2000. Mr. Ratzlaff married in March 2000. The testator and his wife were involved in a motor vehicle accident in November 2000. Mr. Ratzlaff died instantly. His wife died five days later.
 After a comprehensive analysis of the origin and purpose of the Saskatchewan equivalent to s. 15 of the Wills Act, the English Wills Act, 1837 (U.K.) 7 Will. 4 & 1 Vic, c. 26, and An Act to amend the Wills Act of Ontario, S.0.1897, c. 20, the court considered whether the statute required a “formal declaration” or statement of intention. After considering the modern approach to statutory interpretation described by Ruth Sullivan in Dreidger on the Construction of Statutes, 3d. ed. (Markham, Ont: Butterworths Canada Ltd., 1994) and the ordinary dictionary meaning of the word “declaration”, the court held at para. 26:
 Thus, on a plain reading of the section and giving the word its ordinary meaning, a declaration need not be a formal statement. In my opinion, the ordinary meaning of the word is that there be a written statement in the will referable to a subsequent marriage.
 The court then addressed the question whether the will as a whole, and not merely some gift in it, must be made in contemplation of the particular marriage to be celebrated, adopting Re Coleman,  1 All E.R. 675 at 680. The court concluded that the whole will, not “some substantial part of it”, must be made in contemplation of the marriage.
 I respectfully adopt those interpretations.
 The question then in the case at bar is, whether the words in the will “my spouse
KAREN CHRISTIANSEN”, and the creation, by words, of a spousal trust in favour of Ms. Christiansen and the appointment of “Karen” as the trustee of the spousal trust fund amount to sufficient declaration that the will is made in contemplation of the subsequent marriage.
 The respondent submits that in accordance with the holding of the chambers judge, the words do not amount to sufficient declaration, absent which the Court may not consider extrinsic evidence.
 With respect, that position does not accord with established authority. Again, the law on this point was usefully summarized in Ratzlaffat paras. 35-36:
 I adopt the position of Lord Cairns in Charter v. Charter, as did Idington J. in Marks v. Marks, that the court has a right to ascertain all the facts which were known to the testator at the time he made the will and thus to place itself in the testator’s position in order to ascertain the meaning and application of the language he uses. A probate judge is entitled to take into account the surrounding circumstances which existed at the time of the execution of the will in order to determine the proper construction of the will. The extrinsic evidence can include utterances and non-testamentary writings as well as direct evidence.
 That position is consistent with the approach in Re Foss. The testator, Foss, made his will in 1956 some eight days before his marriage. He stated in his own handwriting on a printed will form “I give devise and bequeath all my personal belongings money, shares in companys, insurance policys and property to my wife (Mrs. P. Foss)”. The will was duly executed. It was common knowledge that Mr. Foss was to be married in a few days. He died in 1972 leaving a widow and three infant children. Helsham J. considered whether extrinsic evidence would be admissible in these terms:
Whilst it is correct to say that the fact that a marriage was contemplated must appear by some expression in the will itself, it is also correct to say that whether the will contains such an expression must depend upon the construction of the will. If the will clearly contains such an expression, then there is no problem. If it does not, but there are some words which may or may not amount to such expression, then the will must be construed so as to find its true meaning. In order to ascertain the meaning of the words used by a testator it is permissible to construe the document in the light of the surrounding circumstances. This is the law in relation to ambiguities of language used in a testamentary document, and applies no less to the aspect of whether a testator has expressed the fact that his marriage was contemplated as to any other. For limited purposes the Probate Court has always been a court of construction, one purpose being to ascertain whether a will should be admitted to Probate: In the Estate ofFawcett (Dec’cf.) (3). This is such a case.
The problem arises in relation to evidence. When it is necessary to decide whether a will has not been revoked by a subsequent marriage, because it is expressed to be made in contemplation of a marriage, is it permissible to admit evidence of the circumstances that existed at the time the will was made – to read what the testator said in his will bearing in mind the situation that pertained at the time, or is the court confined to
the terms of the will itself in order to ascertain whether it is expressed to be made in contemplation of marriage?
There can be no dispute that evidence is admissible as to the marital state of the deceased and any interested party at the date the will was made, and of the subsequent marriage of the deceased. That brings up the matter for decision. But can the court consider any other facts, as for example, that the deceased was engaged to be married, whether or not he was living with a person whom he describes in his will as his wife and whom he subsequently married, what time elapsed between will and marriage, and so on? On this matter of evidence views has differed.
After referring to Charter v. Charter, supra, he continued:
In my opinion where a question arises as to whether an expression used by a testator in a will is sufficient to prevent revocation, by subsequent marriage, of that will by reason of the operation of s. 15(2) of the Wills, Probate and Administration Act, then extrinsic evidence of surrounding circumstances, in addition to the fact and date of marriage, will be admissible in order to answer the question.
This approach is also consistent with what this Court stated in Haidl v. Sacher.
 The court concluded, at para. 41:
 Thus, evidence of the surrounding circumstances is admissible to construe the relevant clause in the will for the purpose of deciding whether it should be admitted to probate. The “surrounding circumstances” are admissible.
 Similarly, in Layer v. Burns Philp Trustee Co. Ltd. and others (1986), 6 N.S.W.L.R. 60 (C.A.), Mahoney J.A. held at 65:
Where it is clear that a word or term used has, amongst its accepted or dictionary meanings, a number of different meanings, extrinsic evidence is admissible to assist the court in determining which of such meanings the word or term bears in the particular case.
 The Shorter Oxford English Dictionary, 6th ed. (Toronto: Oxford University Press, 2007), notes the origin of the word “spouse” from the Latin sponsus bridegroom, sponsa bride, and defines “spouse” as a “married person; a person’s lawfully married husband or wife”.
 Similarly, in Taylor v. Rossu, 1998 ABCA 193,161 D.L.R. (4th) 266 at para. 92, the court held that “The ordinary meaning of the word “spouse” is a person who is joined in lawful marriage to another person.”
 On that basis, there is arguably no ambiguity and the term used in the will can be said to refer to Mr. MacLean’s wife whom he was yet to marry, Ms. Christiansen.
 By contrast, the chambers judge found no ambiguity because, at the time in
Mr. MacLean and Ms. Christiansen were living in a “common law” (or “spouse-like”) relationship. There is authority to support that conclusion. For instance, in Ferguson v. Armbrust, 2000 SKQB 219, 187 D.L.R. (4th) 367 at para. 41, the court found that “‘spouse’ may reasonably be interpreted as being limited to legally married spouses or as including both legally married spouses and common law spouses as the context requires”.
 If one accepts that the word “spouse” may refer to either a legally married person or a person living in a marriage-like relationship, then the use of the word in the circumstances at bar was ambiguous. Extrinsic evidence is thus admissible to determine the meaning in this case.
 The circumstances of the making of the will in this case were summarized in the appellant’s factum:
(a) The Will was made after joint tax and estate planning with Ms. Christiansen.
(b) Both Mr. MacLean and Ms. Christiansen were sophisticated financial professionals.
(c) The Will was executed after the wedding date and arrangements had been set.
(d) The solicitor preparing the Will knew of the wedding; was invited to and attended the wedding reception and advised Mr. MacLean and Ms. Christiansen on honeymoon travel arrangements to Italy.
(e) [The Will] was prepared at a time when Mr. MacLean and Ms. Christiansen were living in a stable, long-term, common-law relationship.
(f) The Will provides for benefits to Ms. Christiansen under a spousal trust.
(g) The Will speaks of Ms. Christiansen as his spouse.
(h) The Will addresses and balances the needs of Ms. Christiansen and of Mr. MacLean’s children.
(i) As their wedding date approached in May 2007, Mr. MacLean told
Ms. Christiansen that he intended to have a Will and Power of Attorney in place before they were legally married.
 When one examines the terms of the will and the circumstances in which it was prepared, there can be no doubt that Mr. MacLean intended that the will would survive his marriage to Ms. Christiansen and provide for her for the remainder of her life. On her death, the one-half of the residue of the spousal trust then remaining would form part of the residue for the benefit of the testator’s children. This was obviously a carefully constructed estate plan. The extrinsic evidence overwhelmingly supports the construction that “spouse” meant Mr. MacLean’s legal spouse, to whom he was, at the date of making the will, not married but was clearly contemplating marrying.
 Further, the whole will was drafted in a manner in which it cannot be said that only the gift to Ms. Christiansen was contemplated. The spousal trust and the children’s fund
planned as an integral part of a whole. In my opinion, the whole will was, when one examines the extrinsic evidence, expressed to be made in contemplation of the impending marriage to Ms. Christiansen.
 As the Supreme Court of Canada stated in Marks v. Marks (1908), 40 S.C.R. 210 at 212:
In other words, it is claimed that there cannot be any one who can answer to that description “my wife” except the one person who may in law be decided to be such.
I do not think the law so binds us.
Unless it does, I do not see why we should pervert the most obvious intention of this testator. I think we are bound to read his language in light of all the circumstances that surrounded, and were known to him when he used it and give effect to the intention it discloses when so read.
 This construction of the will further satisfies the legal presumption against an interpretation of a will that would create an intestacy. Thus, in Re Harrison; Turner v. Hellard (1885), 30 Ch. D. 390 at 393-394 (C.A.), Lord Esher, for the Court, held:
… when a testator has executed a will in solemn form you must assume that he did not intend to make it a solemn farce – that he did not intend to die intestate when he has gone through the form of making a will. You ought, if possible, to read the will so as to lead to a testacy, not an intestacy. This is a golden rule.
 It follows that I would find that the references to “spouse” in the will and the extrinsic evidence establish that Mr. MacLean’s will was made in contemplation of his marriage to Ms. Christiansen. I would therefore order that the will be admitted to probate.
 The respondents submitted that special costs should be ordered against the appellant personally on the foundation that, but for his admitted careless error, the costs in both this Court and the Supreme Court would never have been incurred.
 Generally, an executor is entitled to full indemnity for all costs properly incurred in proceedings in which a question is raised. See: Royal Trust Corporation
of Canada v. Clarke (1989), 35 B.C.L.R. (2d) 82 (C.A.). As I have noted, the executor in this case does not seek an order for costs in his favour in recognition that the proceedings were caused by his mistake. He is prepared to abide by any order as to costs that this.