Rules of Construction

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Compiled by Eric B. Appleby:

General

“Leading principle of construction. The only principle of construction which is applicable without qualification to all wills and overrides every other rule of construction is that the testator’s intention is collected from a consideration of the whole will taken in connection with any evidence properly admissible, and the meaning of the will and of every part of it is determined according to that intention.” (Emphasis added by Hunt, J.A.) See Christensen v. Martini (1999), 232 A.R. 339; 195 W.A.C. 339 (C.A.), para. 12.

Time to which a will refers

A testatrix became of unsound mind in 1979. She made her will in 1972 and died in 1984. The trial judge concluded that since the testatrix became incompetent in 1979, the will must speak as of that time. The Nova Scotia Supreme Court, Appeal Division, stated that s. 22 of the Wills Act stipulated that a will must speak as of the death of a testator unless a contrary intention appeared; the trial judge was wrong in concluding that will must speak as of the date the testatrix became incompetent. See Palmer v. Royal Trust (1986), 73 N.S.R.(2d) 435; 176 A.P.R. 435 (C.A.).

Technical words “If the will has been drawn by a lawyer, the court will assume that the technical terms are used in their correct, technical, legal sense, unless it clearly appears that they were intended to bear some other meaning. Conversely, if the will is drawn by one who is not trained as a lawyer, it is more likely that the court will assume that the will is written in layman’s language and, accordingly, will give the words their popular, rather than their technical, meaning.” See Lyons Estate, Re (1999), 16 B.C.T.C. 390 (S.C.), para. 11.

Time when law applicable

The deceased’s will left the remainder of his estate “to be divided equally between my brothers and sisters … “. Two claimants asserted that they were children of a brother of the deceased who had predeceased him. Sections 40 and 41 of the Children’s Law Act abolished the distinction between children born inside and outside marriage, but the sections did not affect an instrument made before those sections came into force on December 1, 1990. The Saskatchewan Court of Queen’s Bench held that while the deceased’s will was executed before December 1, 1990, pursuant to s. 24 of the Wills Act, the will was to be construed as if it had been executed immediately before the testator’s death on August 23, 1997. Therefore, the claimants were included in the term “children” in the will and were entitled to the brother’s share of the estate. See Kurtz Estate, Re (2000), 198 Sask.R. 116 (Q.B.).

Interpretation of legislation and intent of testator

“No legislation will be construed as thwarting the intention of a testator as expressed in his will, unless the language clearly and unmistakably indicates that the Legislature so intended and has effectively brought about that result.” See Gee Estate, Re (1988), 52 Man.R.(2d) 157 (Q.B.), para. 5.

Presumption against intestacy

“Where the construction of the will is doubtful, the Court acts on the presumption that the testator did not intend to die either wholly or even partially intestate, provided that on a fair and reasonable construction there is no ground for a contrary conclusion”. See Halsbury’s Laws of England, 2 nd Ed., vol. 34, para. 258.

Interpretation of words

“There are certain rules of construction to which a judge ought to adhere, viz.: (1) to read the will without paying any attention to legal rules; (2) to have regard not only to the whole of the clause which is in question, but to the will as a whole, which forms the context to the clause …; (3) to give effect, if possible, to all parts of the will and so to construe the will that every word shall have effect, if some meaning can be given to it and if such meaning is not contrary to some intention plainly expressed in other parts of the will …; (4) When the judge thus determines the intention of the testator he should inquire whether there is any rule of law which prevents effect being given to it …”. See Hordynsky Estate, Re (1983), 23 Sask.R. 196 (Q.B.), para. 6.

In Antoniuk Estate, Re (1982), 20 Sask.R. 293 (Sur. Ct.), para. 11, the court stated: “…. in construing a will the duty of the court is to ascertain the intention of the testator, which intention is to be collected from the whole will taken together, and where there is ambiguity, the court is entitled to consider also the circumstances surrounding and known to the testator at the time he made his will”.

Omissions

The residual clause of Farren’s will, which was drafted by a lawyer in 1997, read: “I direct that my brother, James P. Farren shall have the use of my home and contents during his life time. Should my said brother predecease me or die within thirty (30) days of my death, then my estate is to be equally divided between my nephew, James P. Farren Jr. and my grand nephew, William Royden Chase, share and share alike”. The residual clause did not dispose of the residue of Farren’s estate if her brother survived her by more than 30 days, which he did.

The New Brunswick Court of Queen’s Bench, Trial Division, examined the residual clause in the context of Farren’s pattern of will making between 1993 and 1999 and found that she had intended to make a gift over of her residue to her nephew and grandnephew named in the residual clause in equal shares. The court concluded that in order to properly express Farren’s intentions, the words “and upon my brother’s death in any event” should be added to the second sentence of the residual clause. See Farren Estate, Re (2004), 279 N.B.R.(2d) 373 ;732 A.P.R. 373 (T.D.)

Error in describing property or persons

Donald Bergey sought an order to rectify his deceased uncle’s will. The issue was whether the residuary clause which left a share of the residue to “Mrs. Donald Bergey”, should be rectified either to delete the word “Mrs.” or to change “Mrs.” to “Mr.”, thereby making Donald Bergey the residuary beneficiary. The will was made in 1982. The deceased’s earlier 1979 will had named “Mr. Donald Bergey” as the residuary beneficiary. The Manitoba Court of Queen’s Bench concluded on all of the evidence that the deceased did not intend to change his beneficiary from Donald Bergey to Donald’s wife and that the change resulted from a typographical error. The court ordered the will rectified to show Mr. Donald Bergey as the residuary beneficiary. See Bergey Estate, Re (1995), 103 Man.R.(2d) 202 (Q.B.). A testator made a specific bequest of the proceeds from the sale of his real property to named beneficiaries. He identified the monies as those which are now invested in an “income investment certificate” with his bank. In fact, the sale proceeds were invested in a “guaranteed investment certificate”. The Saskatchewan Surrogate Court held that the misnomer should not deprive the beneficiaries of the bequest, because the intention of the testator was clear and the monies were identifiable. See Babyn Estate, Re (1991), 95 Sask.R. 279 (Sur. Ct.).

Precatory words (request or wish)

A testator left a trust for the maintenance and education of his infant children. He expressed a “wish that my children be educated in private schools and learn the French language”. The Saskatchewan Surrogate Court held that the words were precatory and did not place a binding obligation on the trustee. See Crepeau Estate, Re (1982), 23 Sask.R. 170 (Sur. Ct.). The Newfoundland Supreme Court, Trial Division, held that a bequest by a testator which was expressed only as a wish was not binding on his estate. See Collins Estate v. Collins Estate (1981), 34 Nfld. & P.E.I.R. 313; 95 A.P.R. 313 (Nfld. T.D.), para. 24.

Evidence, armchair rule

In a case that involved a boundary dispute, the Newfoundland and Labrador Supreme Court, Trial Division, stated that the court had to determine the testator’s intention from what was written in a will. The court noted that in doing so, judges apply the “armchair rule” and attempt to place themselves in the armchair of the testator to determine the circumstances surrounding him at the time he made his will as an aid to construing the language of the will. See Maher v. Bussey (2004), 234 Nfld. & P.E.I.R. 56; 696 A.P.R. 56 (Nfld. T.D.), para. 19. The Saskatchewan Court of Queen’s Bench stated that the armchair rule “requires the court to place itself in the position of the testator at the time he wrote his will, then read the will and interpret it by utilizing admissible aids of construction, such as the surrounding circumstances and context”. Under the armchair rule, only indirect extrinsic evidence known by the testator at the time he made the will could be considered. Whatever occurred subsequent to the making of the will was inadmissible. See Lenz Estate v. Lenz (2005), 259 Sask.R. 301 (Q.B.), para. 17.

Invalid directions

A man directed in his will that his horses be shot, presumably because of his concern that they not end up in the hands of someone who would abuse them. The New Brunswick Court of Queen’s Bench, Trial Division, struck down the direction and held that ensuring that the horses were properly placed and cared for would satisfy the testator’s intention that they not be abused. In the alternative, the court held that the direction was void as contrary to public policy, because the destruction of the horses would serve no useful purpose and would waste estate assets even if carried out humanely. See Wishart Estate, Re (1992), 129 N.B.R.(2d) 397; 325 A.P.R. 397 (T.D.).

A testator’s will required a beneficiary to remain in one of the named “main stream Christian churches” in order to receive his inheritance. The Newfoundland Supreme Court, Trial Division, concluded that a provision restricting the religious affiliation of any person in Canada was contrary to public policy. Further, if the provision was not contrary to public policy, it would have to be declared void because the gift could never be perfected. The bequest could not take effect until the death of the beneficiary, because only then would one know whether or not the beneficiary had become associated with any of the churches which were not “main stream”.

General v. particular intention; Cy-près doctrine

Where a Court finds upon the face of a will a clear, general or paramount intention to which effect can be given, and a particular or subordinate intention to which the Court cannot give effect, then the particular intention must be rejected or modified. Such a modification is called the doctrine of cy-près, and the intention of the testator is carried out as nearly as may be consistent with certain rules of law. The doctrine is well established as regards charitable gifts. See Halsbury’s Laws of England, 2nd Ed., vol. 34, para. 270.

The testatrix’s will left a bequest to Twin Rivers Home Care Inc. When the testatrix died, the Twin Rivers Health District, which had responsibility for Twin Rivers Home Care Inc., no longer operated as such and responsibility for that entity had passed to the Prairie North Health Region. The Saskatchewan Court of Queen’s Bench held that the testatrix was concerned with benefitting the facility rather than the actual operator. The court applied the cy-près doctrine, holding that the true meaning and intent of the clause in the will could be resolved by substituting the name Prairie North Health Region for Twin Rivers Home Care Inc. See Leer Estate, Re (2005), 264 Sask.R. 131 (Q.B.).

Extrinsic evidence

The testator left his estate in trust to establish a summer camp for diabetic children in his area and, if no camp was established, to the operators of an existing camp. In fact the existing camp was operated by the Rotary Club for crippled children, which offered camp facilities for two weeks a year to the Canadian Diabetic Association for diabetic children. The New Brunswick Court of Queen’s Bench found that the will was ambiguous in its identification of the donee. The Court of Queen’s Bench admitted extrinsic evidence to resolve the ambiguity. See Binns, Re (1976), 16 N.B.R.(2d) 601; 21 A.P.R. 601 (Q.B.).

An unmarried testator made bequests to his niece and to her young son, his favourite relative. When the niece experienced financial difficulties, the testator lent the niece money and he also changed the bequests in several codicils. The Nova Scotia Supreme Court, finding ambiguity in what the testator intended, held that it was entitled to determine the meaning in the light of the circumstances surrounding the making of the will. The court interpreted the bequests in accordance with the testator’s intention to be protective and supportive of his niece and fair and equitable to his other relatives, with the exception of his favourite relative, his niece’s son. See Brown Estate, Re (1995), 139 N.S.R.(2d) 252; 397 A.P.R. 252 (S.C.), paras. 25 to 35.

A testator left the residue of his estate to three unnamed children. The testator had five children. The Saskatchewan Court of Queen’s Bench held that the will clearly contained an equivocation and it was therefore necessary to look at extrinsic evidence of the testator’s actual intention to resolve the equivocation. The court looked to the typed instructions provided by the testator to the solicitor who prepared the will. The instructions provided that the property was to be divided equally between three of his children and contained the children’s names. The court held that the residue should be divided equally among these three children. See Holland Estate, Re (1994), 122 Sask.R. 274 (Q.B.), paras. 1 to 11.

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• Article Name: Rules of Construction
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This entry was last updated: February 13, 2017