SUPREME COURT OF Nova Scotia
Citation: Gates Estate (Re), 2018 NSSC 266
Date: 20181107
Docket: Bwt No. 471840
Registry: Halifax
Between:
Darren James Gates, in his capacity as Co-Personal Representative of the Estate of Greta Janet Gates
Applicant
v.
Ann Elizabeth Veinotte, in her capacity as Co-Personal Representative of the Estate of Greta Janet Gates
Respondent
DECISION
|
Judge: |
The Honourable Justice Denise M. Boudreau |
|
Heard: |
September 4, 5, 6, 7, 2018, in Bridgewater, Nova Scotia |
|
Counsel: |
Peter Rumscheidt, for the Applicant Rubin Dexter and Benjamin Carver, for the Respondent |
By the Court:
Introduction
[1] Greta Gates died testate on March 30, 2014, leaving six children. Her Will, dated May 11, 2011, appointed two of her children as co-executors to her estate: Darryn Gates and Ann Veinotte. It is these two individuals who bring the present dispute before the court. The parties seek an Order interpreting and/or clarifying certain of the clauses of Mrs. Gates’ Will: the location of properties which are named therein as “the Joel Gates lot at Green Bay” and the “Lewis Romkey lot at Green Bay”.
Facts
[2] In order to contextualize this dispute, it is necessary to become aware of some historical facts associated with some of the Green Bay lands owned by Mrs. Gates at the time of her death. I take this information in large measure from the affidavit of the Applicant.
[3] In 1910, a large lot of land in Green Bay, Lunenburg County Nova Scotia, was purchased by two brothers, Joel and Haliburton Gates. In 1920, Joel and Haliburton decided to divide this property between themselves, into 2 roughly equal (and adjoining) pieces. These 2 pieces were actually broken into nine separate lots, by way of a “Plan of division” that was created at that time. Notes on the plan indicated the owner of each new lot as agreed upon: they were identified as “Joel Gates Nos. 1-5” and “Hal Gates Nos. 6-9”.
[4] Following the subdivision, Haliburton Gates sold all of his pieces to a third party.
[5] Beginning in the 1930s, Joel started selling off small pieces of his land, but only from “Joel Gates lot No. 1”. His lots Nos. 2-5 remained untouched.
[6] In 1937, Joel’s son, Atwood Gates, purchased another property in Green Bay, located immediately adjacent to the original Joel/Haliburton Gates land. This newly purchased land was often referred to, over the years, as the “Huey lot”. It is a large piece of land, running alongside the full length of the original Joel/Haliburton Gates land.
[7] In July 1940, Joel Gates transferred to his wife Florence, the remaining portions of “Joel Gates lot No. 1”, as well as “Joel Gates lots 2-5”. Following this transfer, Joel and Florence continued to sell portions of “Joel Gates lot No. 1”. Joel continued to appear on deeds transferring these properties as a Grantor, even though he has divested himself of title.
[8] In November 1940 Atwood Gates transferred the “Huey lot” to his mother Florence.
[9] In February 1943, Joel and Florence Gates transferred the remainder of “Joel Gates lot No. 1” as well as “Joel Gates lots Nos. 2-5” to their son Atwood Gates. Again, Joel appears as Grantor on this transaction, even though he had granted his interest in these properties to his wife back in 1940. That same day, Atwood and his (first) wife Beulah transferred the same lands back to Joel and Florence.
[10] In September 1946, Florence transferred a piece of the “Huey lot” to a third party, J. Irving Hebb.
[11] Throughout the 1940’s, 50’s, and 60’s, Joel and Florence continued to sell off small portions of “Joel Gates Lot No.1”. The lots numbered 2-5 remained untouched.
[12] Joel Gates died in May 1967. In September 1967 his wife Florence transferred the remainder of “Joel Gates Lot No. 1”, along with Lots 2-5, to her son Atwood and his (then) wife Greta.
[13] In September 1968 Florence Gates transferred the “Huey Lot” to herself and her son Atwood.
[14] Florence Gates died in 1968.
[15] In 1969 and 1970, Atwood and Greta sold various parcels of land to third parties, including portions of the “Huey Lot”, “Joel Gates Lot No. 1”, and one piece of “Joel Gates Lot No.2”.
[16] Further into the 1970’s, Atwood and Greta continued to sell or transfer small pieces of “Joel Gates Lot No. 1”. Other than one transaction involving “Joel Gates Lot No. 2” (as noted in the previous paragraph), none of the original Joel Gates lots 2-5 were touched.
[17] In 1976, Atwood and Greta transferred the “Huey Lot” to themselves as joint tenants.
[18] In 1979, Atwood and Greta sought a survey plan of “Joel Gates Lot No. 1”, in view of a formal subdivision of the land. That subdivision was meant to effect further transfers of pieces of “Joel Gates Lot No. 1”, to the children of Atwood and Greta. During the 1980’s, pieces of “Joel Gates lot No. 1” were transferred to some of the children of Atwood and Greta: Albina, Peggy and Ann. These pieces became known as the “cottage lots”.
[19] Atwood Gates died in October 1988. By will, his estate passed to Greta.
Remainder of “Joel Gates Lot No. 1”
[20] As I have outlined, many pieces of the original “Joel Gates Lot No. 1” were carved off and sold/transferred over the years. In order to determine what of that original lot remained, the Court was provided with an expert opinion from Kevin Fogarty, a registered land surveyor. Mr. Fogarty provided the Court with a Compilation Map dated May 29, 2018 (Exhibit B of Mr. Fogarty’s Report). This map shows the original “Joel Gates Lot No 1”, along with the portions of the “Huey Lot” that are immediately adjacent to it. The document also provides a list of every transfer out of these lots, both by reference to its deed, as well as a cross-reference to the actual sketch of each individual lot.
[21] Mr. Fogarty’s work shows that only a very small portion of the original “Joel Gates Lot No. 1” now remains undeeded. The remainder is approximately 2 acres in total, in an irregular “hook” shape. It includes a narrow strip of land upon which lies a private road known as “Gates Way Road”, which links many of the properties (in particular the “cottage lots”) to the main road.
Will of Greta Gates
[22] Greta Gates died on March 30, 2014. At the time of her death, Mrs. Gates owned numerous lots of real property, including the lands already discussed. Her Will, dated May 11, 2011, made bequeaths of various lots of land to each of her children. For the purposes of this decision I note the following clauses:
(f) to convey and transfer to my son Alan Jeffrey Gates, of Petite Riviere, aforesaid, as his own property absolutely:
…
(2) The Joel Gates lot at Green Bay;
(3) The lot known as the Cabbage Field in Green Bay;
…
(j) to convey and transfer to my son Thomas Joel Gates, of Carp, Ontario, as his own property absolutely:
…
(5) The Lewis Romkey lot at Green Bay;
…
[23] The executed Will makes no mention of the “Huey Lot”.
[24] The will further provided a residue clause to the benefit of all 6 children equally.
Positions of the Parties
[25] The applicant Darryn Gates is a co-executor of the Will, and one of the children of Atwood and Greta Gates. He provides his position on the present dispute as follows:
70. It is my understanding and belief based primarily on the public historical paper record but also to an extent on direct communications I had with my mother over time, that the Joel Gates Lot at Green Bay in simple terms is the remaining land from the original Joel Gates No. 1 which occurred through the years up to the point when Greta executed her Will.
…
72. It is my understanding and belief based on my review of the historical paper record that the Lewis Romkey Lot at Green Bay as referenced in the Will is comprised of:
- all of Joel Gates No. 2 other than:
- the small portion of Joel Gates No. 2 transferred to Dale and Janet Waller on August 27, 1970 as referenced in paragraph 44 of this Affidavit and Exhibit “26”; and
- the Cabbage Field in Green Bay as more fully discussed below.
- All of Joel Gates No. 3;
- All of Joel Gates No. 4; and
- All of Joel Gates No. 5.
[26] It is the further position of the Applicant that, if he is correct, the “Huey Lot” is not specifically provided for in the Will, and therefore would fall in the residue clause.
[27] The respondent Ann Veinotte is the second co-executor of the Will, and is also a child of Atwood and Greta Gates. She disagrees with the interpretation suggested by the applicant.
[28] It is the position of the respondent that the references in her mother’s Will to the “Joel Gates lot at Green Bay” (given to Alan in the Will) and the “Lewis Romkey lot at Green Bay” (given to Thomas in the Will) are references to the two large original pieces of land in Green Bay, that run parallel to each other (the “Huey lot” and the “Joel Gates lots 1-5”).
[29] It is the respondent’s position that the “Joel Gates Lot at Green Bay” is, in fact, the property known as the “Huey Lot”; and that the “Lewis Romkey lot at Green Bay” is, in fact, the property I have identified as Joel Gates lots 1-5 (minus any/all pieces of these lands sold over the years).
[30] It is the respondent’s further view is that all of the lands owned by her mother at the time of her death are identified and accounted for in her Will. As such, in her view, no real property falls to the rest and residue of the Estate.
[31] It is to be noted that the other four children of Greta Gates (Albina, Alan, Peggy, and Thomas) have provided affidavits, and all were cross-examined. All four are in agreement with the position of the respondent. Furthermore, the respondent and her siblings question the applicant’s motives for bringing the present application.
Law
[32] In Re Murray Estate 2001 NSCA 25:
[18] While direct extrinsic evidence of a testator’s intention is not generally admissible, evidence of circumstances known to the testator at the time of making the will may be considered by the court….
[19] It is apparent that the words of the residuary clause before us are susceptible of at least two interpretations. There has been debate in the case law whether or not an unclear or ambiguous meaning must appear from the language of the will before a court can consider surrounding circumstances. Whatever approach is favoured, there is sufficient uncertainty here to require us to examine the surrounding circumstances, such as the testator’s lifestyle, means and assets, and the relatives and associations in construing the words of the will.
[33] The court in Murray Estate quoted the following passage from Re Burke (1959) 20 D.L.R. (2d) 396 (Ont CA) with approval:
… 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 testator’s 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 in so far as they set forth or explain any applicable rule of construction or principle of law. Each Judge must endeavor to place himself in the position of the testator at the time of the last will and testament was made. He should concentrate his thoughts on the circumstances which then existed and which might reasonably be expected to influence the testator and the disposition of his property. He must give due weight to the circumstances in so far as they bear on the intention of the testator. He should then study the whole contents of the will and after full consideration of all the provisions and language used therein, try to find what intention was in the mind of the testator. When 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.
[34] The Court continued:
[23] In my opinion, this is as good a statement as any as to how we should perform our function. It is not strictly necessary here to determine which procedure is preferable because, as I have said, we are driven to examine surrounding circumstances in any event.
[35] Similar language can be found in Peach Estate, 2011 NSSC 74:
[33] all parties are in agreement as to the approach I should apply in determining Mr. Peach’s will, and in particular Clause six (6). They have stated, consistent with the caselaw, that the subjective intent of the Testator at the time he drafted his will should be determined. They say that in doing so regard must be had to Mr. Peach’s circumstances and that extrinsic evidence shall be considered to determine those circumstances. I hasten to add here that direct evidence of the Testator’s intention should not be admitted save in exceptional circumstances. Extrinsic evidence of surrounding circumstances is admitted only to give meaning to the words the Testator used. In other words, the primary evidence of his intention is the will itself.
[34] In Skerrett v. Bigelow Estate (2001) NSSC 116, Moir J. adopted the following as an accurate summary of the law that I should apply in this case, the so-called “Armchair Rule”:
Counsel referred me to passages in MacKenzie, Feeney’s Canadian Law of Wills (Toronto, 2000, 4th ed.), including para. 10.1 and 10.14, which include:
In interpreting a will, the objective of the court of construction should be to determine the precise disposition of the property intended by the testator. The court should attempt to ascertain, if possible, the testator’s actual or subjective intent as opposed to an objective intent presumed by law. The court should be concerned with the meaning that the particular testator attached to the words used in his or her will rather than with a hypothetical standard that might be that of an average or reasonable person. This approach requires the court to consider the testator’s peculiar and unique language, all the circumstances surrounding his or her own life and all the things known to him or her at the time he or she made his or her will which might bear on the type of dispositions he or she actually intended to make by the will. The Court puts itself in the position of the testator at the point when he or she made his or her will and, from that vantage point, reads the will, and construes it, in the light of the surrounding facts and circumstances. This approach is commonly referred to as the “armchair rule”.
[36] In the case before me, both parties through their counsel agree that it would be appropriate for me to review both the Will itself, as well as the surrounding circumstances, in order to determine Mrs. Gates’ intentions.
Surrounding Circumstances
[37] The Will of Greta Gates was prepared with the assistance of lawyer Janus Naugler. Ms. Naugler testified at this hearing. Her file indicates that her first meeting with Mrs. Gates occurred on August 12, 2010, at which time Ms. Naugler recorded information given to her by Mrs. Gates. The notes in the file indicate (as to the above-noted properties in particular):
5. House to Thomas
(Marshall Publicover to be out in 30 days)
Lot 1 on the Gates Way Road in Petite Riviere
Lot lying btn home and Norman Hirtle back to the pond
The Huey lot at Green bay
The old round turn camp lot at Green bay
The Lewis Romkey lot at Green bay
2. …
3. Alan: All properties prev owned by Herbert Whynot bot by Atwood or myself from Herbert Whynot
The Herbert Whynot lot off of the grant road part of the Harmon Mills
Alan: the Joel Gates lot at Green Bay
Beach road across G2
The cabbage field
…
[38] Ms. Naugler testified that she and Mrs. Gates had a number of meetings between August 2010 and May 2011, in further discussion and preparation of the Will. In the view of Ms. Naugler, Mrs. Gates was very involved and committed to ensuring that this “project” of her Will, be accomplished. Ms. Naugler further testified that while she has prepared many wills over her years of practice, the time she spent on this will far exceeded the norm.
[39] Ms. Naugler testified that through her work with Mrs. Gates, she became a bit concerned about the description that Mrs. Gates was providing for her properties; in particular, whether they were being described in sufficient fashion to be identified. She testified that Mrs. Gates reassured her that the names she was using for the lands were commonly used names within her family, and that in particular, her son Alan would know exactly where all of the properties were.
[40] Mrs. Gates also provided a notebook to Ms. Naugler, where she had written some notes relating to her wishes for the division of property. Under “Alan” is noted, among other things, “Green Bay lot former Joel and Florence Now Greta Gates”. Under “Thomas” is noted, among other things, “Lot of land formerly Lewis Romkey purchased 1910 by Haliburton and Joel Gates.”
[41] Ms. Naugler was aware that Mrs. Gates had effected a previous will in 1986. Ms. Naugler’s file contained a codicil to that will, dated August 7, 1991. It provided the names of Mrs. Gates’ three sons; below each name, Mrs. Gates had handwritten the lot that that son was to receive: Alan: “Farm Joel Florence Lot”; Darryn (the applicant): “Beach Lot”; Thomas: “Lewis Romkey Lot”.
[42] In the spring of 2011, Ms. Naugler prepared a draft will for Mrs. Gates. It is contained in the file put before me. As regards the gifts to Alan, it is identical to the final will that was signed. However, as regards Thomas, the draft is significant in that it includes a gift that does not appear in the final will. The draft purports to give to Thomas:
(5) the Huey lot at Green Bay;
[43] Ms. Naugler’s file indicates that she met with Ms. Gates and her daughter Ann on May 11 2011, to review the final draft of the will and have it executed.
[44] Ms. Naugler testified that she had no memory as to how, or when, or why, the provision granting the “Huey lot” to Thomas was removed. Clearly it was: it is in the draft will, but it is not in the final executed version. The notes in the file also indicate that Mrs. Gates’ daughter Ann Veinotte was present throughout this meeting, except for one occasion when she went out to the car to ask Alan “about a lot of land in Green Bay”. Ms. Naugler could not provide any further detail about this note.
[45] Ms. Veinotte (the respondent) testified and recalled being present for the signing of the will. However, she does not recall why she spoke to Alan. Nor does she recall how or why the provision relating to the “Huey lot” was removed.
Cabbage Field
[46] The “cabbage field/lot” is another piece of land granted to Alan in the Will. It is a non-subdivided small piece of land which was also the subject of dispute between the parties when this Application was filed, as to its location and boundaries. At the hearing, the parties advised that they had reached agreement as to this gift. Its boundaries must be formally mapped out. The approximate location of this piece, on the ground, is well-known to all the siblings.
[47] For our purposes, I note that the approximate location and boundaries of the “Cabbage Field” was sketched by the respondent in her evidence before the court (affidavit of Ann Veinotte, Exhibit 13). Each of the siblings Albina, Alan, Peggy, and Thomas also attached this same sketch to show the approximate location of this lot of land. They all indicated that their mother Greta had told them that this lot was to be conveyed to Alan, to provide him with a “cottage lot”, near the other siblings’ cottages.
[48] I note that, as sketched and agreed upon by the respondent and her four siblings, the “Cabbage Field” appears to be inside, at least partially (and perhaps even completely), the boundaries of the remainder of the original Joel Gates Lot No. 1 (the irregularly-shaped lot sketched and described by Mr. Fogarty).
[49] As to the Cabbage Field, the applicant says this:
36. It is my understanding and belief that the Cabbage Field which is to go to Alan pursuant to Clause 3(f)(3) of the Will is located entirely within the Lewis Romkey Lot which is to go to Tom pursuant to Clause 3(j)(5) of the Will.
37. Attached as Exhibit “12” to Ann’s affidavit is a sketch on which she has indicated what she understands to be the approximate location of the Cabbage Lot. Based on my review of this rough sketch, it appears to possibly suggest that a portion of the Cabbage Lot falls within what I consider to be the remaining portion of Joel Gates Lot 1 which is to go to Alan.
38. As Co-Executor of the estate I take no position on the specific location of the Cabbage Field lot so long as none of it encroaches on the parcel of land I consider to be the Huey lot in the same parcel of land which my siblings referred to as the Joel Gates lot.
[50] The applicant does not explain why that last point is important to him.
Evidence from respondent and other children of Greta Gates (Ann, Albina, Alan, Thomas, Peggy)
[51] The respondent states in her affidavit:
4. My mother took great pride in her lands and knew them well. They were among her most cherished assets. She was a conscientious and hands-on property owner, taking care to ensure that her lands were well-maintained and properly demarcated.
…
10. I spent a great deal of time with my mother on her property at Green Bay. As such, I am very familiar with her Green Bay lands, their general location, and the different nicknames or monikers which she called them.
…
20. During her lifetime, my mother took care to treat each of her children equally. My mother’s fundamental and over-arching goal was always fairness and equal treatment of the children.
21. My mother’s commitment to the principles of fairness and equality is evidenced by the provisions of the Will, which provide for each of my siblings and me to receive specific parcels of land and an equal share in the rest and residue of her estate.
[52] With the exception of the applicant, the other children of Greta Gates (Alan, Thomas, Albina, and Peggy) swore affidavits that contained the same information.
[53] The respondent provided the following further information as evidence in support of her position:
a) There are two (original) large lots located in Green Bay, the “Joel Gates lot” and the “Lewis Romkey lot”;
b) The “Joel Gates lot” is referred to as the “Huey lot” in the deeds for its chain of title;
c) Having said that, the respondent states that she and her family most commonly referred to that piece as the “Joel Gates lot”; she states that in conversations, her mother Greta most commonly used the name “Joel Gates lot”;
d) Greta Gates sometimes referred to this piece as the “Huey lot” or “the Farm” in writings; (the respondent acknowledged that Greta never referred to this lot as the “Joel Gates lot” in any writings;)
e) This is not the only piece of property in the Gates family that was known by multiple names, either by nickname, by reference to its previous owner, or by reference to features of the land;
f) The respondent also provided documents containing her mother’s handwriting. On a copy of a deed for the “Huey lot”, Greta Gates wrote:
This is deed for Hewy Lot at Green Bay Dad bought Then Grammie and Grandpa Gates gave Dad thier land right next know as the Lands of Lewis Romkey
g) Also on that same deed, Greta Gates drew two long rectangles side by side. In the rectangle on the left, she wrote “was Falt”; the siblings note that the Joel Gates/Huey Lot was originally owned by the Falt family. In the rectangle on the right she wrote “Grampie and Brother bought Lewis Romkey”. Below this sketch, Greta Gates wrote “description of 1 lot at Green Bay. There are 2 lots.”
h) In that same deed, another sketch was drawn by Greta Gates. It again shows two long rectangles with the word “Gates” written across them, along with other information leading to the conclusion that it again is a sketch of the two original Green Bay lots. It includes sketches of the various lots that Greta and Atwood had granted to their children for cottages (with the lot for Darryn still showing, thereby dating the sketch as many years pre-Will), as well as the location of the main road and the ocean. The name “MacLeod” is written next to the left rectangle (it is noted that a family named “MacLeod” did own the adjoining property for a number of years). Over the sketch Greta Gates has written “Description of 1 lot at Green Bay. There are Two side by side.”
i) In a ring notebook kept by Greta Gates, there is an entry: “ Joel and Haliburton Gates Bought thier Green Bay piece of Land on April 4 1918. Registered on that date in Book 75, Page 464, No. 294. Green Bay is two separate pieces. the other was George & Liggs falt property it went with our home property Dad sold to Gramie Gates and then she and grampie deeded both back to Dad”. This entry also contains a sketch of portion of the lands; the information shown in the sketch would have been accurate between 1980 and 2001 (i.e. before the Will was signed);
j) A “green notebook” was found with the Will at the time of Greta Gates’ death, containing notes in her handwriting. The respondent recalls this notebook being brought to a meeting with lawyer Naugler and believes it was used by Greta Gates in preparation for her Will, by making notes about her properties;
k) On the first page of the green notebook, under the heading “Alan”, is written: “Green Bay Lot former Joel & Florence Now Greta Gates”. Below it is a post-it with the words “Green Bay from Joel and Florence to Dad”;
l) On the third page of the green notebook, under the heading “Thomas”, is written: “Lot of Land Formerly Lewis Romkey Purchased 1910 by Haliburton & Joel Gates”. Next to it is a post-it with the words “Joel & Halib To Dad-”;
m) The respondent notes that she never heard her mother refer to any of her properties by the names “Joel Gates No. 1” “Joel Gates No. 2” “Joel Gates No. 3” “Joel Gates No. 4” or “Joel Gates No. 5”; nor does the green notebook contain these names.
n) It is acknowledged by the respondent that Greta Gates was aware of the 1920 plan of division between Joel and Haliburton Gates, where the 5 Joel Gates portions of the land were numbered. However, the respondent states that Greta Gates never made reference to it to her, nor did she use that terminology to describe her lands.
o) The Cabbage Lot (given to Alan in the will) is a small non-subdivided piece of land, which would fall within the Lewis Romkey lands (and more specifically, within “Joel Gates lot No 1”). The respondent notes that she, Albina, and Peggy received cottage lots within that same general area. The respondent further notes that Greta had “always” said that the Cabbage lot was to be Alan’s cottage lot;
[54] Again, the other children of Greta Gates (with the exception of the applicant Darryn) provided affidavits to this Court. Each provided essentially the same information as the respondent, and each agrees with the position of the respondent as to the proper interpretation of the Will of Greta Gates, their mother.
[55] The respondent (along with her four siblings Albina, Alan, Thomas, and Peggy) also notes that the bequests made by their mother in her 1986 codicil, corresponds with those of her 2011 Will (assuming one accepts their interpretation). The 1986 codicil provided that Alan receive the “Farm Joel Florence lot” (i.e. the Huey or Joel Gates lot); Darryn receive the “G2 lot” (which is a beachfront lot in Green Bay); and Thomas receive the “Lewis Romkey lot”.
Evidence – applicant
[56] The applicant does not agree with much of the evidence of his siblings.
a) He agrees that his mother had “knowledge and pride” with respect to her lands;
b) He has no recollection of his mother referencing the “Huey lot” as either the “Joel Gates lot” or the “Farm lot”;
c) The applicant points out that in actual fact, Joel Gates never owned the lot that his siblings are calling the “Joel Gates lot”;
d) The applicant has possession of a document found in his mother’s safe after her death, showing a sketch of the Green Bay lands. On the document are the words “copy for Greta G.”. Notes on one piece of sketched property indicate “Hughie Lot GATES was Falt Bought 1937”; on the other piece, one can see the division into Gates Nos. 1-9 (as shown in the 1920 Plan of division between Joel and Haliburton). The applicant notes that this shows that Greta Gates was aware of the nine separate pieces of land, divided between Joel and Haliburton Gates.
e) The applicant notes that other documents found in Greta Gates’ possession at the time of her passing, also show her knowledge of the 1920 agreement between Haliburton and Joel Gates, and the location of lots 1-9 as they brothers had agreed to. A copy of the 1920 Agreement and Plan of Division were found in Greta Gates’ personal effects after her death, in an envelope marked as such, in her handwriting.
f) The applicant notes that in or around 2001, a dispute arose as to the ownership and boundaries of another lot of land in Green Bay claimed by Greta Gates, known as lot G2. The applicant assisted his mother with that dispute. On July 22, 2001, Greta Gates wrote a letter to the applicant, stating:
Darryn,
This is a copy of the original deed to Joel + Haliburton Gates. Later they split the lot in different lots I’ll show you when you get home. …
g) Another document found in the papers of Mrs. Gates is a sketch of what appears to be the original “Joel Gates lot No. 1”, showing some of the subdivisions as they were done/ being done. That sketch shows a small piece marked “Gates” in his mother’s handwriting, which would approximately be found at the location of the remainder. The applicant feels this is further supportive of his position, that “Joel Gates lot at Green Bay” from the Will would be roughly represented by that piece marked “Gates”.
[57] The applicant, as I have said, believes that the “Huey lot” is unaccounted for in his mother’s Will. He acknowledges, on the other hand, that despite much research, he has been unable to find any other property that is unaccounted-for in the Will.
Motives of applicant
[58] All the children of Greta Gates, with the exception of the applicant, swore to the following paragraphs in their affidavits:
The administration of my mother’s estate has proven difficult. My brother Darryn has taken a rational and aggressive positions toward me and the Estate’s other beneficiaries. The result is that he has severely impeded and delayed the estate administration process.
While there has been little if any difficulty in reaching consensus among myself and my other four siblings, Darryn has continually caused problems for the rest of us. But for his involvement, and obstinence, I believe the Estate would have been settled long ago.
[59] The respondent and her siblings (with the exception of the applicant) all contend that, in their view, their mother’s intentions are obvious from the Will. They say that they all know which lots of land their mother refers to. They all believe that the applicant also knows, or ought to know. The siblings (with the exception of the applicant) also note two further factors which, in their view, are illustrative of the applicant’s motives in bringing this application.
[60] Firstly, on April 6, 2014, in the days following their mother’s passing, a family meeting was held to read the Will. Ms. Naugler was in attendance, along with all the siblings, and some other family members. At that meeting the applicant made certain comments which, in the view of the respondent and her siblings, confirms that the applicant was, at that time, in agreement with their interpretation of the Will:
Albina: And she mentioned….you mentioned Joel Gates property, one of the boys got it here.
Darryn: There are two long strips of property down at Green Bay that run back in the woods, back where the gravel pit is.
[61] And later:
Peggy: What was the answer to the question about that other Green Bay lot...the somebody Oickle or somebody whatever… Green Bay lot and Janus said Darryn knew all about that.
Janus: Oh oh there is a Joel Gates lot.
Darryn: Yep.
Janus: And a Lewis Romkey lot….
(when describing these two lots Ms. Naugler makes hand gestures, indicating two long strips)
Alan: They are back…
Janus: And they lie side by side.
Alan: They are back the road…
Darryn: Going back to the…
Peggy: Oh, okay.
Alan: Go back end of the road the road…straight back…
Darryn: Going to the, they go back….
Alan: To the…
Darryn: To the gravel pit.
Alan: Go back to the gravel pit where the road was built from.
Darryn: Yep.
Alan: Both of them…. side by side…. The Romkey lot is on the front the other one is on the back next… Runs back now all along…
Darryn: Macintosh…
Alan: Macintosh land.
Darryn: So, so who got the front one?
Alan: And the one comes right out….
Janus: Which one are you wondering about?
Alan: Right out along…
Darryn: The front…. the one facing…. closest or I guess facing the coast.
…
Janus: The Joel Gates lot went to Alan.
Tom: Joel was on the back, you said, Alan?
Alan: The front, the Joel Gates…
Janus: The Joel Gates lot went to Alan…. The Joel Gates went to you…. Was it Tom that got the Lewis Gates one… Lewis Romkey….The Lewis Romkey went to Tom, yeah…
Darryn: And that’s the one that, the one on the front?
[62] Secondly, the respondent and her siblings (with the exception of the applicant), further note that the applicant’s position materially changed when he became aware of an arrangement having been made between siblings Alan and Tom. The respondent states as follows:
104. After my mother’s passing, Alan entered into an agreement to sell the Joel Gates lot to Tom. When Darryn found out about this agreement to sell the Joel Gates lot, he was infuriated. Darryn made his anger known to me and my other siblings. I am also informed by Alan and do verily believe that Darryn demanded that he nullify or undo this deal.
105. Darryn told me he was angry at Alan for selling the Joel Gates lot to Tom. It has only been since then that Darryn has been trying to prove that there are five (5) Joel Gates lots.
[63] Albina, Alan, Thomas, and Peggy all swore to similar information and beliefs in their affidavits. Thomas Gates, in particular, in cross-examination, testified that it is his firm belief that the applicant brings this Application for selfish reasons; in order to obtain the whole or part of the Huey/Joel Gates lot for himself.
[64] The applicant strongly disagrees with the characterization put forward by his siblings. He asserts that he has brought this application in good faith, in accordance with his beliefs as to his mother’s testamentary wishes.
[65] In relation to the family meeting that was held after the death of his mother, the applicant notes that at that time he had not yet done the research to ascertain the history of the lands. He was simply mistaken. Further, he notes that others at this meeting also made comments that they are now claiming to be incorrect; he notes the following exchange:
ANN: Is that the one the trailer is sitting on?
ALAN: That is the one the trailer is supposedly sitting on, the Joel Gates lot.
[66] The applicant notes that the “trailer” referenced here was, and is, located within the remaining portion of “Joel Gates lot No 1”. In his view this is supportive of his argument that the “Joel Gates lot at Green Bay” is, in fact, “Joel Gates Lot No 1” as referenced in the 1920 Plan of division. Furthermore, the applicant provides this exchange as evidence that Alan Gates knows this to be the case.
[67] The applicant does agree that he was displeased when he heard of the deal between Alan and Tom. He says that was because he felt the deal to be unfavourable to Alan. He disputes that he was “infuriated”.
Analysis
[68] My task is to determine what Greta Gates meant to give when she gave “the Joel Gates lot at Green Bay” to her son Alan Gates; and what she meant to give when she gave the “Lewis Romkey lot at Green Bay” to her son Thomas Gates. Those questions require me to look at the Will itself, as well as the surrounding circumstances to the Will.
[69] As described by Ms. Naugler, Mrs. Gates said to her, in relation to her gifts of real property, that “everyone” would know what she meant, and in particular, “Alan” would know. All the children of Greta Gates, with the exception of the applicant, recall Ms. Gates using the name “Joel Gates lot” to refer to the land also known as the “Huey lot”. I accept their evidence. None of the siblings, including the applicant, can recall Mrs. Gates referring to any portion of the Lewis Romkey lot as Joel Gates Lot No. 1, 2, 3, 4, or 5. I also accept that evidence.
[70] Greta Gates was, by all accounts, a conscientious and proud landowner. She was aware of, and very much interested in, all of her land holdings. Furthermore, she worked very hard on this Will (as described by Ms. Naugler).
[71] It is notable that if Mrs. Gates did in fact omit the “Huey lot” in her Will, either by accident or purposely, it is the only piece of land she omitted.
[72] In my view, it seems unlikely that Greta Gates, given what we know of her, would have forgotten or purposefully omitted such a large piece as the “Huey lot” in her Will. Every other piece of land she owned was dealt with. In fact, she did not forget it, as the Huey lot was included in the draft Will prepared by her counsel. Frankly, in my view the much more likely scenario is that Mrs. Gates removed the reference to the Huey Lot in her final Will, because she noticed that she had named it twice (once as the “Huey lot” and once as the “Joel Gates lot”).
[73] In her notes, Mrs. Gates often referred to the Green Bay lands as two large lots running side by side. Conceptually she refers to this on many occasions. It would seem logical, in my view, that she would seek to bequeath these two lots in the same way that she visualized them.
[74] Mrs. Gates certainly appears to have been aware of the 1920 division of the original Joel/Haliburton Gates lot (the Lewis Romkey lot) into 9 lots. She was also aware that the lots then taken by Joel Gates were identified on a sketch as “Joel Gates lots 1-5”. However, she does not appear to have spoken of any of those lands by those names to her children.
[75] The 1986 codicil of Greta Gates appears to correspond with the interpretation of the 2011 Will proposed by the respondent and her siblings.
[76] The green notebook notes of Greta Gates indicate (in a section marked “Gifts to Alan”), a gift of the “Green Bay Lot former Joel and Florence”. In actual fact, Joel Gates never appeared on title to the “Huey Lot”, although for a time it was in the name of his wife Florence. Having said that, it does not appear based on the evidence before me that Greta Gates fully appreciated that legal nuance, as she would often link both Joel and Florence to this land. In notes found after her death, as noted hereinabove, she stated:
This is deed for Hewy Lot at Green Bay Dad bought Then Gramie and Grandpa Gates gave Dad thier land right next know as the Lands of Lewis Romkey (emphasis is mine);
Green Bay is two separate pieces. the other was George & Liggs falt property it went with our home property Dad sold to Gramie Gates and then she and grampie deeded both back to Dad (emphasis is mine)
[77] Greta Gates had knowledge about her properties, but she was not a lawyer or a title searcher. There is no evidence before me that Greta Gates ever underwent or was privy to any formal search of the chains of title for these properties. The dispute before me does not turn on questions of formal title, but rather, what Greta Gates knew or believed at the time she executed this Will. It seems clear to me that Greta Gates did associate the Huey lot with both Joel and Florence Gates, despite the formal and legal realities of its title.
[78] The majority of the Gates siblings agree that in crafting her will, Mrs. Gates would have been concerned with effecting a fair division of lands for her children. The siblings note that if the Will is interpreted as suggested by the respondent and her siblings, fairness would be reasonably achieved. On the other hand, the interpretation proposed by the applicant would provide a very small, oddly-shaped piece of land to Alan; in fact, part of it being an actual roadbed used by a number of landowners in the area. This does not seem to correspond with everyone’s belief that Mrs. Gates would want to be equitable to all.
[79] Another surrounding circumstance which I find significant is the fact that Mrs. Gates also granted the “Cabbage Field” to Alan in her Will. That particular piece of land is wholly or partly within the lands identified by the applicant as “Joel Gates lot No. 1”. In other words, if I accept the interpretation proposed by the applicant, Mrs. Gates is giving Alan essentially the same land, in whole or in part, twice. That does not seem to accord with everyone’s assessment of Mrs. Gates as an astute and knowledgeable landowner.
[80] It seems much more logical, given the entirety of the evidence before me, that the bequeath of the “Cabbage Field” to Alan was meant to provide him with a separate cottage lot, similar in size and close to a number of the other siblings, as Mrs. Gates had often indicated she would do.
[81] In my view, the preponderance of evidence here points quite strongly in favour of the respondent’s position, that is to say: that the “Joel Gates lot at Green Bay” conveyed by Greta Gates to her son Alan by her 2011 Will means that land also known as the “Huey lot”.
[82] I have carefully considered the evidence and position put forward by the applicant. I must admit that I have found, to some extent, that his case is somewhat difficult to reconcile and/or understand.
[83] For example, at the time of the family meeting, the applicant clearly seemed to be agreeing with his brothers and sisters about the Will conveyances. The applicant acknowledges that he did not even start researching the “Joel Gates lot” issue until after he discovered the sale of the “Huey lot” from Alan to Tom (paragraph 52 of his Reply affidavit). It is a reasonable inference, then, which I make, that this purported sale was in fact the reason for the applicant’s research efforts. I accept, as suggested by the respondent and her other siblings, that the applicant did not contest their interpretation of their mother’s Will, until after he discovered that the Huey lot was being sold by Alan. That, frankly, does not correspond with the applicant’s suggestion that his sole motivation in bringing this application is a good faith quest for his mother’s wishes.
[84] The applicant agrees that he was somewhat displeased about the sale from Alan to Tom. I have no evidence as to the value of the “Huey lot”, nor whether the amount agreed upon between Alan and Tom ($15,000) was too high or too low. Nor do I know why the applicant would be concerned about a land transaction involving his two adult brothers, both of whom are presumably perfectly capable of managing their own affairs.
[85] If I were to accept the position the applicant has put forward, the practical effect would be to strip 5/6 of the “Huey lot” from Alan, and leave him with a small, and partly unusable, lot (Joel Gates lot #1 remainder).
[86] The applicant has brought this application (and clearly alienated all of his siblings) for reasons that I do not fully comprehend. I do acknowledge and appreciate that there was some evidence that supported his position; however, in my view that evidence was simply and clearly insufficient, in the face of the contrary evidence. Most unfortunately, this application has used resources from the estate, and energy from all of Greta Gates’ children, that in my view would have been better spent elsewhere.
[87] In the final analysis, the entirety of the evidence here leads me to the conclusion that the respondent’s interpretation of the 2011 will of Greta Gates is the correct one.
[88] As a result, I find and order as follows:
1. That the “Joel Gates lot at Green Bay” referred to in Clause 3(f)(2) of the 2011 will of Greta Gates is that same piece of land also known as the “Huey lot”;
2. That the “Lewis Romkey lot at Green Bay” referred to in Clause 3(j)(5) of the will of Greta Gates is that piece of land consisting of the Joel Gates Lots 1-5 (as noted in the 1920 plan of subdivision), minus any and all previous conveyances.
[89] I leave it to counsel to discuss costs. If they cannot resolve this issue, they are to provide me with written submissions within 30 days of this decision.
Boudreau, J.