General Rule of Probate applies to validity and not construction

Smith Estate v. Rotstein, 2011 ONCA 491 deals with the General Rule of probate law, which is said to require that all testamentary documents be proven or probated at the same time. The Court held the rule applies not to the construction but only the validity of the testamentary instruments.

The Court holds:

(i) Did the motion judge err in granting partial summary judgment in respect of some, but not all, testamentary instruments?

[23] Counsel for the appellant relies on the General Rule of Probate, which can be traced back to 1858 through all 30 editions of the leading probate text – Tristram & Coote's Probate Practice. (The most recent edition is J.I. Winegarten, R. D'Costa & T. Synak, 30th ed. (London: LexisNexis Butterworths, 2006) at paras. 3.160-3.173.) The rule has its genesis in ecclesiastical law where a grant of probate from an ecclesiastical court in contentious proceedings was irrevocable, except in limited situations such as the discovery of a later will after the grant of probate or circumstances giving rise to fraud.

[24] The General Rule also served to protect an executor whose duties were circumscribed by the testamentary documents admitted to probate. Probating all testamentary documents at the same time promoted certainty and enabled the executor to proceed with confidence in carrying out his or her fiduciary duties.

[25] Counsel for the appellant describes the underlying purpose of the rule as follows:

The rationale for the rule remains persuasive today. A grant of probate sets up a property right in the assets of the estate in favour of the executor. All the world must have confidence in transacting with the executor that he or she has the right to deal with the property of the estate. This achieves transactional certainty. In contrast, admitting some, but not all, documents to probate may undermine this certainty. Second, the grant of probate allows the executor to be appointed and thus creates the obligation that he or she takes up. Granting probate in respect of some, but not all, documents before the court can result in a weak quality of the grant, especially as one document may revoke, limit or otherwise nullify another. It may make the executor's duties impossible to ascertain. The rationale for the General Rule thus continues to operate.

[26] Applying the rationale for the rule, as articulated by counsel for the appellant, I can find nothing in the reasons for judgment of the motion judge that offends the rationale. There is nothing, in the circumstances of this case, which would undermine the confidence of anyone dealing with the executor concerning the property of the estate. There is nothing in either the third codicil or the fourth codicil that weakens the grant of probate in respect of the will or its first two codicils.

[27] Finally, counsel for the appellant submits that the motion judge failed to recognize that the General Rule relates to the validity of the will and not its construction.

[28] I can find nothing in the reasons for judgment that suggest the motion judge did not recognize the General Rule relates to the validity of the will and not its construction. Indeed, at paras. 49-51 of his reasons, the motion judge appears to make the appropriate distinction:

A will and its codicils should be construed together as one testamentary disposition. As put in Williams on Wills, Ninth Edition:

The will and all the codicils thereto are construed together as one testamentary disposition, although not as one document and the same principles in general apply to the construction of a codicil as of a will. For the purpose of explaining the will or any codicil, the court may and is bound to look at the will and at all the other codicils (emphasis added).

But the issue on this motion does not involve the construction of testamentary documents; it concerns the validity of testamentary documents. The common law recognizes that proceedings involving wills may involve two distinct questions: (i) inquiring into which document constitutes the will of which the testatrix knew and approved; and, (ii) interpreting what the language of the will means: Balaz v. Balaz [[2009] O.J. No. 1573 (S.C.) at para. 10]. This proceeding engages the first question only. Once it is determined which documents constitute the will of Ruth Smith, subsequent questions of interpretation may or may not arise.

In my view Ms. Rotstein's argument conflates a task not yet before this court – the interpretation of valid testamentary documents – with one that is – ascertaining which testamentary documents are valid. Ms. Rotstein has put in issue the validity of her mother's last will and codicils. Her brother's Rule 20 motion requires the court to determine whether a trial is necessary or unnecessary to determine the validity of those testamentary instruments. Put another way, the questions on this motion are which of the testamentary instruments require a trial to determine their validity and which, if any, do not? If the answer is that some do not require a trial, then the objections to their validity can be dismissed and what remains for trial will be the validity of the other testamentary instruments. Once the validity of all testamentary documents has been ascertained, either on this motion or at trial, it may or may not be necessary to engage in questions of interpretation of those testamentary instruments which have been found valid, but that is an exercise for another day and another place.