Saskatchewan Estate Litigation Update: Gilchrist v Gilchrist, 2023 SKKB 187

The recent Saskatchewan King’s Bench decision in Gilchrist v Gilchrist, 2023 SKKB 187 offers a reminder of the importance of updating your will. If you do not update your will, and certain beneficiaries named in your will have died before you, the legal outcome may be one that does not reflect your intentions.

Factual background:

1. Dawn Jacqueline Gilchrist (the “Deceased”) died on August 18, 2022;
2. The issue in Gilchrist was whether or not the Deceased’s estranged brother, William, should receive any share of the Deceased’s Estate under the Intestate Succession Act, 2019, SS 2019, c I-13.2 (“Act”);
3. The Deceased had died with three surviving siblings – Glendon Gilchrist (“Glendon”), Lorraine Gilchrist (“Lorraine”) and William Gilchrist (“William”);
4. However, in the mid-1990s, William was convicted of having indecently assaulted the Deceased while she was a minor. William denied then, and he denied now, that he had indecently assaulted the Deceased;
5. That said, there did appear to be evidence that the Deceased did not intend to give any of her Estate to William. The Deceased’s executor, Glendon Gilchrist (“Glendon”) pointed to the sexual assault conviction. Furthermore, the Deceased had had no contact with William during her adult life. The Deceased had conducted herself as though William did not exist. In contrast, she did remain in a relationship with her other two siblings – Glendon and Lorraine (who were also explicitly named in her will);
6. Moreover, there was evidence that, in the days before she died, Lorraine and the Deceased had discussed the prospect of the Deceased amending her will to reflect the fact that their parents had already died. Lorraine says that on August 17, 2022, the Deceased asked her to have a lawyer come to the hospital so that the Deceased could amend her will to leave her estate to Glendon and Lorraine. Lorraine arranged for a lawyer to attend at the hospital on August 18, 2022, but the Deceased died in the early morning of that day;
7. Lorraine provided evidence that that “It was clear from my discussions with the Deceased that she had no idea that any law existed that could cause part of her estate to go to William because her parents were named in the Will and were deceased;”
8. Given this background, Glendon, as executor, applied for an order that the residue of the Deceased’s estate (“Estate”) be divided equally between him and Lorraine Gilchrist, with no part going to William Gilchrist.

Will left by the Deceased:

To place the decision in Gilchrist in context, we must understand the will left by the Deceased and understand what the intestacy regime is:

1. On March 8, 1991 the Deceased executed a will (“1991 Will”). It had been prepared by a Saskatoon lawyer. In the 1991 Will, the Deceased provided specific bequests to Glendon and Lorraine. She then provided that the residue of her Estate (i.e. what was left over) would go to her parents. William was not among the beneficiaries named in the will.
2. As it turned out, the Deceased’s parents died before she did. Her father, John, died on May 19, 1995. The Deceased mother, Elsie, died on December 9, 2016;
3. The Deceased did not amend her will or replace it with another at any time after executing her will in 1991. It is undisputed that when she died on August 18, 2022, the Deceased’s gift of the residue of her Estate to her parents had lapsed, as both parents had predeceased her. In law, when a testamentary gift is given to someone, but then that person has died before the gift takes effect, the gift generally lapses into intestacy (subject to a few exceptions which did not operate here);
4. Intestacy refers to a situation in which a specific estate property is not specifically distributed under a will. In such cases, such property is to be distributed under the direction provided by Intestate Succession Act, 2019, SS 2019, c I-13.2;
5. This Act provides for a series of classes (classes of family members of the deceased) who have various levels of priority to take the intestate property. These rights apply by operation of law, and do not depend on whether or not the deceased actually wanted them to receive any property. Many non-lawyers may not even know the details of the Act and not even be aware that such laws may affect their estate property after their death;
6. Again, it must be noted that the Act and its regime can be opted out of. All someone needs to do is to have a valid will which specifies where the property is to go. It is only in cases where the will is silent that the Act comes into play;
7. Here, the Act provided that where someone dies with no children or parents having survived them, any undistributed estate property goes to the siblings. The Act had no exception for a situation in which one surviving sibling had been convicted of an offence against the testator (although such an exception may be a good idea for future law reform);
8. As such, when the Deceased in Gilchrist died, it appears that s. 8 of the Act operated to cause the residue of her Estate to go in equal shares to her surviving siblings, Glendon, Lorraine and William.

Issue:

Against this background, Glendon argued that the residue of the Estate should be distributed to only Glendon and Lorraine, with none of it going to William. Glendon asserts that it would be contrary to the Deceased’s testamentary intention for any part of her Estate to go to William.

Findings by the Court:

Before turning to the outcome in Gilchrist, we survey what principles govern the interpretation of a will.

What information does a Court consider when interpreting a Will?

Typically, most wills are clearly written and can be plainly interpreted. Where a will is unambiguous, routinely courts interpret the will without reference to any other extraneous information outside the four corners of the will.

If however a phrase in a will is ambiguous, there may be a need to go beyond the testator’s written words, and into surrounding facts. This can help to ascertain and implement the testator’s testamentary intention.

Again, however, where a will is not ambiguous, a Court should not look to extraneous evidence outside the four corners of the will.

A Court cannot speculate as to what a testator would have intended to write in their Will, had they turned their mind to a hypothetical situation:

In Gilchrist, the Court ultimately concluded that Saskatchewan law only permits a judge to interpret the existing words used in a Will. The Court cited the below from prior caselaw:

20 The court’s only objective in interpreting a will is to ascertain and give effect to the intention of the testator, as expressed by the language of the will, at the time the will was executed.^[1]

[emphasis added.]

Glendon was able to locate a prior Ontario decision – Frohlich Estate v. Wedekind, 2012 ONSC 3775 – in which an Ontario court had concluded that it was appropriate to speculate as to what a testator would have intended had she turned her mind to a particular circumstance. In Frohlich, the court concluded that the deceased would not have intended to give a lapsed share of her estate to her family (the family were virtual strangers to the deceased). Rather, she would have intended to give it to the other named residuary beneficiaries in her will. The court in Frohlich reached this conclusion despite the fact that the will simply did not contain any ambiguity – it was clear that the residual portion had lapsed, and thus fell into the statutory intestacy regime.

The outcome in Frohlich was likely morally fair – as it reflected what the deceased likely intended but had failed to provide for, by taking timely steps to update her will. The Court in Gilchrist felt however that such an approach was not the law in Saskatchewan.  Gilchrist reaffirmed that in Saskatchewan, a Court must interpret the words that the testator chose to use. The Court was not allowed to speculate on what a testator might have done had they considered a certain situation. The Court wrote:

[28]        Glendon accurately identifies Frohlichas a case in which the court determined what would have been the testator’s testamentary intention if she had turned her mind to a particular circumstance, and if she then had addressed that circumstance in her will. With respect, though, I am not persuaded that the armchair rule has evolved to empower a court to do so.

Outcome in Gilchrist:

Ultimately, the Court held that the residue fell under the intestacy regime of the Act, and therefore went to Glendon, Lorraine and William.

The Court held that it was not permitted to speculate as to what the Deceased would have intended if she had turned her mind to the prospect of her parents dying before she died. Such was not the proper task of the Court. The Court’s proper task was simply to ascertain and give effect to the testator’s intention, as expressed by the existing language of the will.

In this situation, the existing language was clear – there were no alternate residual beneficiaries set out by the Deceased. The Deceased had simply not turned her mind to the possibility of who should receive her residue in the event her parents predeceased her:

26   On March 8, 1991 Dawn did not turn her mind to the prospect of her parents dying before she died, and so when she executed her will on that day she had no testamentary intention in that regard. There is no testamentary intention, relating to an alternate residual beneficiary, for the court to ascertain.

Finally, the Court held that even if the Court had been prepared to speculate as to what the Deceased would have intended in this situation, the evidence available was not sufficient to lead the Court to a certain and definite conclusion as to who would have been named (as of 1991, the date of the Will) as the residual beneficiaries:

32 …The evidence that is before me, though, is not sufficient to support the conclusion that on March 8, 1991 Dawn would have intended to name Glendon and Lorraine as residual beneficiaries. While they were named beneficiaries of specific bequests at that time, there may have been others in Dawn’s life in 1991 that she would have considered as residual beneficiaries. The evidence does not establish who, if anyone, Dawn would have chosen as an alternate residual beneficiary in 1991.

Costs order in Gilchrist:

The Court in Gilchrist did however order that both sides would have their solicitor-client costs (i.e. their dollar for dollar legal costs) paid out of the Estate. This meant that the losing party did not have to bear their own costs, or pay costs to the other side.

The Court held that the general rule of costs in estate litigation involving the interpretation of wills, is that the parties’ costs are to be paid out of the estate. This approach ensures that the will is interpreted in a manner that accurately reflects the intention of the testator.

Lessons offered by Gilchrist:

• Thus, in light of Gilchrist, lawyers are reminded that a Saskatchewan court will confine its interpretative exercise to the written words actually used in a will. It appears that a Saskatchewan court will not go on to (like the Ontario decision in Frohlich) speculate as to what the testator would have intended had they turned their mind to a given situation.

The practical lesson of Gilchrist is that people need to update their wills. If they do not do so, they risk a very harsh result. A court is not permitted to make a fresh will for a testator merely because the testator failed to take steps to update their will.

Intestacy regimes – which provides an order of who is entitled to intestate estate – are statuary tools. The intestacy regime we have is beneficial in that its brings stability to those situations in which the testator has not left direction for given property. While this can cause unintended results, and unfair outcomes, such are an unavoidable necessary side-effect of the law’s need for predictable and certainty. Without intestate legislation, the law would be forced to enter a slippery slope, of trying to speculate what a deceased person intended. Such situations would invite much litigation, with attendant cost and delay. Moreover, the court would still not be sure of always getting it right (because the testator, after all, is not here to testify as to what they truly intended).

The way to avoid the harsh results of intestacy legislation is to take matters into your own hands, and ensure that your will reflects your wishes. You must ensure that it accounts for potential scenarios in which some of your beneficiaries may die before you.

^[1] Citing Ellingson v Ellingson, 2017 SKQB 14 at para 20, 23 ETR (4th) 221 at para 20.