Vancouver Ambiguous Unclear Will Interpretation lawyers help beneficiaries and executors carry out the true intentions of a deceased Willmaker. Traditionally, courts focused on deciding a Willmaker’s wishes by looking within the 4 corners of the Will itself. WESA has relaxed the rules for what constitutes a valid Will and what the Court can do to rectify and interpret such Wills. Emails, text messages, notes on paper napkins, homemade Wills that are unwitnessed, maybe even video and audio recordings might be able to be held as a valid Will in BC.
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Obviously, nontraditional Will documents are often poorly written and they can be vague so interpretation and rectification of defective Wills are important. WESA Section [4(2)] dispenses with the distinction between patent and latent ambiguity for the purpose of admission of extrinsic evidence. It allows extrinsic evidence of surrounding circumstances, but no evidence of the testator’s intention, to be admitted for the purpose of showing an ambiguity exists.
Vancouver Ambiguous Unclear Will Interpretation – What Test Do The Courts Use?
Courts have used a combination of two approaches with a heavy emphasis first on looking closely at the Will itself.
Abram Estate v. Shankoff, 2007 BCSC 1368 at para. 77 a case decided under the old BC Act explained that the proper approach of the court is to consider the language of the will in light of the surrounding circumstances together, rather than one first and then the other.
However, Smith v Smith stated you look first at the four corners of the Will itself and only if this does not allow interpretation do you use the “armchair approach”. The “armchair rule”, is defined as the situation 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. It does not allow wild speculation on what the testator was thinking.
Vancouver Ambiguous Unclear Will Interpretation – A Good Summary Of The Law Today
The 2017 decision in Vopicka v. Vopicka Estate gives us a great summary of the law:
[12] While there have been somewhat different approaches utilized by the BC Court of Appeal as to when the courts can look beyond the will itself to ascertain the intention of the testator, as noted recently in Killam v. Killam, 2017 BCSC 175, at para. 60, the starting point for any analysis is the language of the will. The court then looks to the surrounding circumstances existing at the time the testator made the will.
[13] A succinct summary of the principles to be applied in interpreting the will are set out in Dice v. Dice Estate, 2012 ONCA 468 [Dice], at paras. 36-38:
36 The parties agree on the proper approach to the interpretation of a will. First, and foremost, the court must determine the intention of the testator when he made his will. The golden rule in interpreting wills is to give effect to the testator’s intention as ascertained from the language that was used: National Trust Co. Ltd. v. Fleury, [1965] S.C.R. 817 at p. 829; Brown Estate (Re), [1934] S.C.R. 324, at p. 330; Singer v. Singer, [1932] S.C.R. 44, at p. 49. Underlying this approach is an attempt to ascertain the testator’s intention, having regard to the will as a whole.
37 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 he made his will – the so-called “armchair rule”: Re Burke, [1960] O.R. 26 (C.A.), at p. 30; Re Shamas, [1967] 2 O.R. 275 (C.A.), at p.279, citing Perrin v. Morgan, [1943] A.C. 399 (U.K. H.L.), at pp. 420-21.
38 Under this rule, the court sits in the place of the testator, assumes the same knowledge the testator had of the extent of his assets, the size and makeup of his family, and his relationship to its members, so far 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 make his last will and testament.
If you have a Vancouver Ambiguous Unclear Will Interpretation case and need guidance on how to properly interpret and carry out a loved one’s Will call us across BC toll-free at 1-877-602-9900.
