The Court is often asked to render a decision regarding a dispute related to the interpretation of a will. Issues related to the interpretation of a will can arise where first the will is vague or subjective such as wills which include such language like “necessary” or “reasonable” – what is reasonable or necessary? Who decides what should have been done to meet these vague requirements? Were these vague requirements met?
In cases where the will cannot be interpreted as is and/or where the testator’s intentions cannot be honoured by virtue of the existing wording of the will, in limited circumstances the Court can rectify a will by adding or deleting words from it. The criteria that must be established before a court can rectify a will is set out inDaradick v. McKeand Estate, 2012 ONSC 5622 (CanLII) citing inter alia Robinson Estate v. Rondel, 2010 ONSC 3484 (CanLII); (upheld on Appeal – see Rondel v. Robinson Estate, 2011 ONCA 493 (CanLII));
- Upon reading of the will as a whole, it is clear on its face that a mistake has occurred in the drafting of the will;
- The mistake does not accurately or completely express the testator’s intentions as determined from the will as a whole;
- The testator’s intention must be revealed so strongly from the words of the will that no other contrary intention can be supposed; and,
- The proposed correction of the mistake, by the deletion of words, the addition of words or both must give effect to the testator’s intention, as determined from a reading of the will as whole and in light of the surrounding circumstances.
However, where there is no dispute as to what the testator intended at the time the will was prepared, and/or where no error in the preparing of the will is alleged, rectification is not a helpful remedy.
So what remedy is available where the issue relates to the interpretation of the existing wording of the will?
In Rondel v. Robinson Estate, 2011 ONCA 493 (CanLII) at para 23, the Ontario Court of Appeal held inter alia as follows:
the task of the application judge, sitting as a court of construction, was to give effect to the testator’s testamentary intentions. The fundamental purpose of the law of wills is to give effect to the testamentary intentions of the testator for the distribution of her estate. The general rule of the common law is that in construing a will, the court must determine the testator’s intention from the words used in the will, and not from direct extrinsic evidence of intent
Part of the rationale behind the Court’s refusal to admit extrinsic evidence relates to the fact that the testator is no longer able to clarify his/her/their intentions.
However, notwithstanding the above, extrinsic evidence is admissible for the limited purpose to aid the construction of the will and will be considered regarding the testator’s circumstances and those surrounding the making of the will – even in cases where the language of the will appears to be clear and unambiguous. For example, the court will consider the character, occupation, the amount, the extent and condition of his/her/their property, the number, identity, and general relationship to the testator of the immediate family and other relatives, the testator’s friends, etc.
The Court also has the opportunity to utilize the “armchair rule”, which calls on the Court to put itself in the position of the testator when he/she/they made their will, armed with the same knowledge that he/she/they had, based on the evidence available.
In the recent Court of Appeal decision of Ross v. Canada Trust Company, 2021 ONCA 161 (CanLII) the Court of Appeal upheld a decision by the Honourable Justice David A. Broad of the Ontario Superior Court wherein His Honour Mr. Justice Broad utilized the armchair rule to give effect to the intentions of the testator with respect to the interpretation of her Will.
The issue in Ross was whether the deceased intended for the net proceeds of sale of her cottage property to benefit only those grandchildren alive at the end of the life interests of Sarah’s daughters or whether at the time the deceased made her will she intended to permit the beneficiaries of one or more of the deceased’s grandchildren, whoever they might be, to take an interest in her cottage property (or its sale proceeds).
Citing Feeney’s Canadian Law of Wills, 4th ed. (Toronto: LexisNexis, 2020) at ss 10.45 and 10.46, the Court of Appeal in Ross described the armchair rule as follows:
In the first instance, the court may not be convinced that the testator’s intention can be discerned from the will itself. In such a situation, since the testator must be taken to have used the language of the will in view of the surrounding circumstances known to him or her when he or she made his or her will, evidence of such circumstances is necessarily admissible, at least insofar as it corresponds to the facts and circumstances referred to in the will. It seems obvious that a court might conclude that admissible evidence of surrounding circumstances is not helpful in determining meaning.
The court puts itself in the position of the testator at the point when he or she made his or her will, and, from that vantage point, reads the will, and construes it, in the light of the surrounding facts and circumstances. This approach is commonly referred to as the “armchair rule”.
The Court, when applying the armchair rule, sits in the place of the testator and assumes the same knowledge the testator had at the time of making the will, in regard to the nature and extent of her assets, the makeup of her family and her relationship to its members.
The armchair rule has been used where the testator’s intention cannot be ascertained from the plain meaning of the will’s language – see Dice v. Dice Estate, 2012 ONCA 468, 111 O.R. (3d) 407, at para. 37.
The Court of Appeal in Ross at paragraph 41, found inter alia that more recently treats the “armchair rule” as an “over-arching framework within which a judge applies the various tools for will construction at his or her disposal”.
Thanks for reading!