Peace of Mind: Certainty in Estate Planning

October 4, 2021

By Brian Babcock

Sometimes a will leaves it unclear “what property is in the trust?”

This is particularly important where your will creates a trust in favour of one person for life, with the remainder going to other persons. Ambiguity creates a variety of issues.

One of these is illustrated in the English case of Re Golay’s Will Trusts. The will included a trust in favour of a Mrs. Bridgewater “to enjoy one of my flats during her lifetime and to receive a reasonable income from my other properties.”

How is the trustee, Mrs. Bridgewater, or a judge, supposed to know what is meant by “reasonable”?

The court will not decide what “reasonable income” means in the judge’s opinion. Instead, the task is to determine what the deceased meant when the will was written.

If the court cannot answer this question, the gift is declared “void for uncertainty”, which is clearly not what the deceased intended to accomplish in their will.

If the will specified a person or group of persons instructed to use their discretion to determine how much Mrs. Bridgewater received, no problem.

Here, no such discretion is set out.

Despite this, the court found the gift valid, deciding that if the deceased’s own intention could not be determined, the court could substitute its own judgment as to a so-called “objective standard”, or, what an average person might have meant by the phrase. In effect, the judge ends up doing exactly what they say he or she should not do – substituting her interpretation for your intention.

This was good news for Mrs. Bridgewater, but not necessarily for the deceased’s actual intention.

Chances are you are not an “average person”, or at least, that your intent might differ from what a judge thinks an “average person” intends.

If you want the “Mrs. Bridgewater” in your life to receive the amounts that you actually intend, and your other beneficiaries also to then receive what you plan, better drafting is required.

Having a lawyer experienced in drafting wills work with you to draft your will is the best solution. A skillful lawyer will ask the right questions to figure out the correct language to use in your will – something that might not happen if you try using a “fill in the blank” form, even an online form that asks set standard questions. The difference is that the lawyer will tailor the questions to suit your individual situation. A form or computer program does not do that. The peace of mind in knowing that your actual intentions will be followed is well worth the modest cost of having a lawyer prepare your will.