Executive Summary: Key Legal and Evidentiary Issues

• Dispute centered on the interpretation of two specific gifts in a 2006 will under British Columbia succession law.

• The executrix argued both gifts were conditional and lapsed due to changed circumstances.

• Central legal issue was whether a trust fund intended for pet care remained valid if the pets predeceased the testator.

• The court considered ambiguity in the will language and permitted extrinsic evidence under s. 4(2) of WESA.

• Testimony from the drafting solicitor, along with will drafts and file notes, were key in establishing intent.

• The court awarded costs to both parties from the estate, finding the litigation resulted from testamentary ambiguity.

Facts and outcome of the case

The case involved a dispute over the interpretation of two testamentary gifts in the will of the late Sydney Carroll. Annie Anderson, the executrix and a longtime friend of the deceased, brought the application. Patricia O’Brien, another close friend of the deceased, was the only defendant who responded to the proceeding. The other defendants, including Karmen Rae Kingsley (aka Carmen Gozdan), were not served due to difficulties in locating them. Anderson contended that two legacy provisions in the will had lapsed due to unmet conditions.

The first gift concerned a $40,000 trust fund set aside for the care of Carroll’s two poodles. Anderson argued the trust was conditional on the dogs surviving the testator. Since both dogs died before Carroll, Anderson maintained that the gift should lapse and revert to the residue of the estate. O’Brien, on the other hand, claimed the will explicitly provided that if the dogs predeceased Carroll, the remaining trust amount should be paid to her. The court found that the addition of the phrase “or, if they both die before me” in the final will draft indicated a deliberate intention to make the gift to O’Brien unconditional. Supporting evidence included the drafting solicitor’s testimony and client file notes, which showed Carroll changed her instructions late in the drafting process to provide this fallback gift to O’Brien.

The second disputed gift involved a $5,000 reimbursement to Gozdan for travel to Victoria to sing at Carroll’s celebration of life. The court found this gift to be clearly conditional upon such travel and the event taking place. As Gozdan had already relocated to Victoria by the time of Carroll’s death, and no celebration was held due to the COVID-19 pandemic, the gift was ruled lapsed and its value returned to the estate’s residue.

The court ultimately ruled in favor of Patricia O’Brien on the first gift, finding it valid and enforceable. The second gift was deemed conditional and void due to failure of its express terms. Both O’Brien and Anderson were awarded their legal costs from the estate on Scale C, as the dispute arose from ambiguities in the will rather than any fault of the parties.