August 30, 2023

In the legal world, “testamentary intentions” refer to a person’s wishes for the administration of their estate and distribution of their assets after death. The last will and testament (often referred to simply as a “will”) is the document which sets out the testator’s (i.e. the person who signed the will) testamentary wishes.

Problems arise when the will is unclear or equivocal. Since the testator is no longer alive to answer questions about her testamentary intentions, the executor may have to ask a judge for assistance in interpreting the will.

In order to determine the testator’s testamentary intentions, a judge focuses on the will itself. The judge’s ability to look at surrounding circumstances are limited. At this first stage, the judge will read the will in its entirety and attempt to determine its meaning using plain, consistent language.[1]

Section 21.1(1) of Ontario’s Succession Law Reform Act allows a judge to dive deeper into the question of the testator’s intention in cases where the meaning of the will remains unclear after an analysis of the will itself. In those cases, the judge can consider limited extrinsic evidence of the surrounding facts and circumstances that the testator experienced at the time they made the will.[2] This is known as the armchair rule.

When applying the armchair rule, the judge puts themself in the position of the testator at the time the will was made. Having placed themself in the testator’s “armchair,” the meaning of the will may become clear. Some examples of extrinsic evidence that a judge may take into consideration when attempting to interpret a will include: the testator’s knowledge of their family dynamics, relationships, and assets at the time the will was signed.[3]

However, for this evidence to be admissible, it must clearly relate to the testator’s testamentary intentions. If the extrinsic evidence is anything but crystal clear regarding a testamentary intention, it is not admissible and the judge will not consider it.

The use of the armchair rule may be especially helpful in the case of handwritten wills (called “holograph wills”). Because holograph wills are generally written by a testator without the assistance of a lawyer, they often use colloquial language which lacks legal precision and clear meaning. The armchair rule gives the judge the ability to understand the testator’s actual intentions without overstepping and creating a new testamentary intention that was not originally the testator’s own.

While s. 21.1(1) of the Succession Law Reform Act and the armchair rule expand the judge’s ability to consider extrinsic evidence when interpreting a will, judges are still not allowed “to read into testamentary documents or writings intentions that are not already set out in them or that are not clearly inferable from admissible extrinsic evidence.”[4] In other words, the judge must be careful to limit their finding to what the testator intended, and not what the judge believes the testator ought to have meant.

[1] Burke (Re), 1959 CanLII 113 (ON CA)

[2] Ian Hull and Suzana Popovic-Montag, Feeney’s Canadian Law of Wills, 4th ed. (Toronto: LexisNexis, 2020) at 10.45 and 10.46

[3] Ross v. Canada Trust Company, 2021 ONCA 161

[4] Estate of Harold Franklin Campbell (Re), 2023 ONSC 4315