Ontario Superior Court rules residual gift clause in last will unconditional

In a recent ruling, the Ontario Superior Court of Justice clarified that the residual gift clause in a last will and testament was not contingent on the testator’s death during a trip.

Jules Baert, who passed away in April 2023 at the age of 92, left behind his wife, Corrine Baert and three sons: Kirk, Gregory, and Jeffrey. The central issue in Baert v. Baert, 2024 ONSC 2747 revolved around interpreting a clause in Baert's last will and testament, which he completed on March 31, 2012.

The handwritten dispositive provisions in the will included a clause that distributed the rest of Baert's estate to his three sons, Gregory, Jeffrey, and Kirk. A significant question arose regarding whether this residual gift clause was conditional upon Baert and his wife dying during an April 2012 trip to Florida.

The Superior Court first examined the relevant principles for interpreting wills, noting that the objective is to ascertain the testator’s true intention by considering the surrounding circumstances when the will was made. The court referenced several key cases to underscore the importance of understanding the testator's subjective intent.

The court identified two possible interpretations of the residual gift clause. One view was that the clause was conditional upon the deaths of Baert and his wife during their Florida trip. This interpretation was supported by the proximity of the residual gift clause to the conditional language about the trip.

However, the court found a stronger argument in interpreting that the clause was not conditional. The court pointed out that the will explicitly stated that Baert was not leaving anything further to his wife because he had already made adequate provisions for her. This indicated Baert's intention for the residual gift clause to be effective regardless of the trip outcome.

Further supporting this conclusion, the court noted that Baert had not made any additional wills in the decade following the trip, and Mrs. Baert currently held the bulk of their wealth in her name. At the same time, the estate contained a relatively modest amount of $400,000. Additionally, Mr. and Mrs. Baert’s wills did not name each other as beneficiaries, suggesting that the residual gift was not conditional.

Consequently, the court answered "No" to the question of whether the residual gift clause was conditional upon the trip, meaning the estate did not pass under the intestacy provisions of the Succession Law Reform Act.

Regarding the clause about the distribution of cash assets and memorabilia by the executors, the court found it to be void. Since the will already disposed of the entire estate through the residual gift clause, the subsequent gift was deemed repugnant and void under the principles of will interpretation.

In conclusion, the court resolved the ambiguity in Baert's will, ensuring that his estate would be distributed as he intended, with unconditional residual gift to his sons. The court also awarded full indemnity costs to the parties involved.