September 1, 2020

The occasion may arise that a testator’s intentions as expressed in their Will are unclear. The ambiguity may be the result of drafting errors in the Will or a change in circumstances between the date the testator signed the Will and the date of death, but this change is not addressed in the Will. In other cases, the Will may contain a term governing a particular bequest or distribution that could be interpreted in more than one way. How are such ambiguities resolved?

Although an estate trustee may have an idea of what the testator had intended, it is not the estate trustee’s role to administer the estate based on their own interpretation of the Will. Rather, it is the estate trustee’s obligation to advise the estate beneficiaries of the ambiguity and the consequences of possible interpretations.

Where the beneficiaries agree on a particular resolution and sign off, the estate administration can proceed in accordance with that interpretation and resorting to the courts can be avoided.

Where the beneficiaries cannot reach a consensus on a particular interpretation stemming from an ambiguity in a Will, then the estate trustee, or a person with a financial interest in the estate, may apply to the court for its opinion, advice and direction on the proper interpretation of the ambiguity at issue.

In construing a Will, the court will apply the guiding principles of Will interpretation (see Dice v. Dice Estate, 2012 ONCA 468 at paras. 36-38), which provide that:

(i) the “golden rules of construction” requires the court to determine the intention of the testator when they made their Will;

(ii) the court is to give effect to the testator’s intention as ascertained from the language that was used, having regard to the Will as a whole;

(iii) where the testator’s intention cannot be ascertained from the plain meaning of the language that was used, the court may consider the surrounding circumstances known to the testator when they made their Will – the so-called “arm-chair rule”;

(iv) under the “arm-chair” rule, the court sits in the place of the testator, assumes the same knowledge the testator had of the extent of their assets, the size and makeup of their family, and their relationship to its members, so long as these things can be ascertained from the evidence presented. The purpose of this exercise is to put the court in, as close as possible to, the same position of the testator when making their last will and testament.

When applying these above principles, the manner in which the court has interpreted Wills in other cases with respect to the intention of the testator will not assist the court in forming an opinion as to the intention of the testator in the particular case under consideration. Each case must turn on its own facts. Other cases are only helpful insofar as they apply a particular rule of construction or principle of law.

This risk in seeking the court’s directions in cases of a Will ambiguity is that the interpretation reached by the court may not be to the liking of all of the beneficiaries. Moreover, while the costs of a Will interpretation application may be borne by the estate, if a beneficiary takes an unreasonable position in the application or supports an unlikely interpretation simply because it would favour them, the court may be reluctant to order that party’s costs payable from the estate. As such, wherever possible, the interested parties, with the assistance of experienced and knowledgeable counsel, should endeavour to reach a resolution on the ambiguity to avoid the expense, delay and uncertainty of litigation.