May 28, 2024
Have you ever wondered how a court interprets a will when people disagree about the meaning?
THE CASES
The principles are described in the Ontario Superior Court decision of Mohapel v. Young.
The objective is that:
When interpreting a will, the court’s task is to determine the testator’s actual or subjective intention as to how they intended to dispose of their property
How does the court achieve that goal?
It studies the will’s contents and uses what is known as the “armchair rule”:
Where the court is not convinced that the testator’s intention can be discerned from the will itself, the court is to “put itself in the position of the testator at the point when [they] made [their] will, and, from that vantage point, reads the will, and construes it, in the light of the surrounding facts and circumstances.
“In light of surrounding circumstances” means that evidence other than the words in the will may be considered.
Note that this only applies where the meaning of the will in unclear looking only at the wording.
The test set out in Mohapel is adopted from a recent Ontario Court of appeal decision, Ross v. Canada Trust Company, which points out that the judge “must endeavour to place himself in the position of the testator at the time when the last will and testament was made.” They must attempt to determine the deceased’s intention by:
- Considering the circumstances that exists at that time which might reasonably have influenced the testator’s thinking.
- Studying the whole content of the will (not try to interpret isolated words or phrases out of context).
- Considering evidence of surrounding circumstances when the will itself does not provide the answer as to the intention.
This putting themselves in the position of the testator is known as the “armchair rule”.
The evidence should include the nature and extent of the assets in question; the makeup of the family; and the toughest one- the relationship of the testator with the family members.
Evidence of surrounding circumstances may be relevant even where the plain meaning of the individual words is clear, since in context, the testator may have given them a special meaning.
TAKEAWAYS
- Will drafting is an art.
- A poorly drafted will may lead to expensive court applications for interpretation.
- Lawyers are skilled professionals trained to draft wills clearly.
- If a court application is necessary, costs can be controlled by hiring a lawyer who has been there before.
WHAT WEILERS LLP CAN DO FOR YOU
Our skilled will drafting lawyers will discuss your intention, and craft a will in language that captures that goal.
If you are confronted by a situation where you are an estate trustee or potential beneficiary in a dispute over the meaning of a will, our experienced and knowledgeable estate litigation lawyers are here to help.
Give us a call and see if we are the right lawyers for you.