The concept of testamentary freedom refers to a person’s freedom to dispose of their property upon death as they see fit.
There are limits on a person’s testamentary freedom and these limits are often reflected in provincial law. In Ontario, the Succession Law Reform Act, establishes limits on a person’s testamentary freedom.
The process of creating a legal document can lead to the use of language which may appear difficult to comprehend, resulting in vagueness and uncertainty. Interpreting Wills and Trusts is no exception, as administrators of Estates and Trusts often find themselves in uncomfortable positions as they are unsure of what exactly the deceased or settor may have wanted.
When situations like these arise the best option for the Trustee is to file a judicial application
seeking the opinion, advice, and direction of the court to explain the provision in the Will or Trust.
This method of judicial interpretation is the simplest way for Trustees to protect themselves from liability and achieve the most reasonable outcome.
The primary rule of interpretation with regards to Wills and Trusts is that the court should aim to give effect to the testator’s subjective intentions. In the decision of Holgate from 2015, the court affirmed that they would attempt to determine the Will maker’s intentions by reviewing the Will as a whole and interpreting it based on the plain meaning of the words used, this is also known as the “golden rule”. The court will apply this rule and presume that the Testator did not intend to die without creating a Will. In circumstances where a Will may have multiple meanings, the Court
is likely to refer to the meaning that most effectively distributes the Estate. Another rule known as the “arm-chair” rule is more intricate in its approach. Here, the court will sit in the place of the Testator and determine the Testator’s intention from the language and context of the legal document.
In the case of Re Burke, the court established that when interpreting a Will, a court must ascertain the Testator’s subjective intention at the time of execution of the Will. Each Judge must strive to “place themselves in the position of the Testator at the time the Will was made, by concentrating their thoughts on the circumstances which then existed, and which might reasonably be expected
to influence the Testator in the disposition of their property.”
The specific words and context of a Will are vital for judicial interpretation purposes. In Re Kaptyn Estate, the Ontario Superior Court summarized many of the principles relating to the interpretation and creation of Wills:
a. The court will seek to determine the actual intention of the Testator, as opposed to an
objective intent presumed by law;
b. Other cases interpreting words in other wills are of little assistance since the task is to
interpret this Testator’s subjective intentions;
c. There is a distinction between interpretation and construction of a Will. Interpretation seeks to determine the Testator’s subjective intentions from the words used in light of the surrounding circumstances. Construction is a process used by the courts when the
Testator’s actual intentions cannot be established;
d. The starting position of the court is the “armchair rule”, where the court puts itself in the place of the Testator at the time when he made his Will. This allows consideration of some extrinsic evidence of the surrounding circumstances known to the Testator as might bear on his intentions;
e. The authorities distinguish between admissible and inadmissible extrinsic evidence
f. the court will interpret the will viewed as a whole;
g. the court will prefer an interpretation that leads to a testacy, not an intestacy;
h. the court will not hesitate to correct obvious mistakes, including deleting or inserting
words, where to do so accords with the testator’s intentions or were not to do so would
lead to an absurd result;
The cases above are a strong demonstration of how important paying close attention to detail can be when drafting a Will. Avoiding extensive litigation is no easy task but an experienced legal team can assist you in drafting a Will that covers all relevant and necessary grounds.
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At Bickhram Litigation, we take pride in representing you by providing up-to-date legal advice and we have an extensive track record of successful estate litigation. For more information on
interpreting legal documents such as a Will or Trust, please contact us for your complimentary
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