December 22, 2023

In the recent case of Kurt v. Kurt and Sullivan, 2023 ONSC 6599 (CanLII), (“Kurt”), the Court was asked to consider the interpretation of a will. The parties agreed on most of the salient facts, but disagreed with respect to the interpretation of one clause of the deceased’s secondary will. The Court reviewed the legal principles applicable when interpreting a will. The starting principle is the “armchair rule”. The Court will place itself in the position (or armchair) of the testator and attempt to determine the testator’s subjective intention in light of all of the surrounding circumstances at the time the will was made. The Court then turns its mind to the evidence that is admissible when considering the “surrounding circumstances”. Indirect extrinsic evidence is admissible. This kind of evidence includes the age of the testator when the will was made, her character and occupation, how many family members she had and their relationship to her, and her property and assets at the time the will was made. The Court will use indirect extrinsic evidence to assist in determining what the testator wrote.

The kind of evidence that is generally inadmissible is direct extrinsic evidence. This is typically derived from third parties who attest to the testator’s intentions, such as statements made by the testator to another about her will. This evidence is generally not admitted into evidence because to do so would mean that every disappointed beneficiary could seek to interpret a will based on her beliefs as to the testator’s intentions.

There are two exceptions to the inadmissibility of direct extrinsic evidence. The first is when there is an “equivocation” in the will.  As referred to in Kurt, an equivocation is where “the words of the will describe two or more persons or things equally well”. For example, a will could provide that the testator’s car is left to his brother but the testator owned two cars when he died. Evidence from third parties as to which car the testator was referring to may be allowed. In the case of an equivocation, direct extrinsic evidence may be admitted to assist in the interpretation of the equivocation.

The second exception is where there is an error in a will. The lawyer who drafted the will must admit the mistake and, in order to rectify the error, the drafting lawyer provides direct evidence of the testator’s instructions. This can include what the drafting lawyer can recall of  discussions and meetings with the testator, as well as what is in the file of the drafting lawyer, such as notes and drafts of the will. The Court will admit this evidence “even if the language of the will appears clear and unambiguous on first reading.” (Rondel v. Robinson Estate, 2011 ONCA 493 (CanLII), (“Robinson Estate”) at para 24). As the Court noted in Robinson Estate, an ambiguity (or equivocation) in a will may only be obvious in light of the surrounding circumstances.

Finally, in interpreting a will and in order to give effect to the testator’s intentions, the Court has the power to add or delete words to the will. The Court is able to do so (i) where a word or words are omitted; and (ii) where an incorrect word or words are used in the will. Before the Court can add or delete words in either situation, it must engage in one final analysis and be satisfied of all of the following:

  1. upon a reading of the will as a whole, it is clear on its face that a mistake has occurred in the drafting of the will;
  2. the mistake does not accurately or completely express the testator’s intentions as determined from the will as a whole;
  3. the testator’s intention must be revealed so strongly from the words of the will that no other contrary intention can be supposed; and
  4. 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 a whole and in light of the surrounding circumstances. (Lipson v. Lipson, 2009 CanLII 66904 (ON SC), at para. 42)

Interpreting a will is no easy task. The stakes can be high and one equivocation or drafting error can have devasting results for a disappointed beneficiary. Individuals with personal motivations cannot provide evidence of the testator’s intentions. It is important to recognize that not all evidence is admissible and when evidence is admitted, it will be closely scrutinized.