Digest of the Week | Construction of Wills

Construction of Wills

Janicek v. Janicek | 2018 ONCA 679 | Ontario Court of Appeal


Estates and trusts --- Estates — Construction of wills — Fundamental issues — Testator's intentions given effect — Determination of intent — Wording of will


Testatrix provided in will that if any of her children, or combination of them, wished to purchase farm property, they could do so at 75 per cent of appraised market value provided they entered into agreement of purchase and sale (APS) with her trustee within one year of date of her death — Trustees were two of testatrix's children — Trustees received competing offers from four children: JJ, AJ, and each of trustees — Trustees and AJ had been willing to purchase farm in combination with JJ, but JJ wished to purchase farm on his own — Ultimately, four children submitted individual offers — APS was not concluded within one-year period, and trustees brought application for directions — Application judge found that testatrix's intention in face of competing offers could not be ascertained — Application judge ordered that trustees were at liberty to sell to farm — JJ appealed — Appeal dismissed — JJ raised, on appeal, matter of memorandum of understanding (MOU), signed after expiry of one-year period, for parties to purchase farm together — Application judge found that MOU was "agreement to agree" and that parties were unable to negotiate remaining details because JJ reverted to his original position that he alone should be able to purchase farm — This finding was amply supported on record — Record did not support JJ's alternative argument that trustees acted unreasonably — JJ's conduct, in reverting to his original position, was reason agreement was not concluded — It was not established that trustees consulted with other children for purpose of frustrating JJ's objective of purchasing farm.

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