Having a clearly drafted will makes it much easier to plan for your future and will help your family when you’re no longer around. It is a key part of estate planning. However, despite the best intentions, those involved in the estate administration can sometimes disagree on what a will means. In some instances, beneficiaries may disagree on the interpretation of the testator’s intentions concerning property distribution. Often, when this happens, estate litigation becomes a possibility.

This article provides an overview of will interpretation and considers whether extrinsic evidence can be used to figure out the testator’s intention. This blog also looks at a recent decision of the Court of Appeal of Alberta, in which the estate of a child of the deceased made a claim under her father’s will that was contested by the deceased’s estate by relying on his subjective intention.

The principles guiding the interpretation of a will

In Alberta, the Wills and Succession Act states that a will must be interpreted in a manner that gives effect to the testator’s intention. This is the fundamental principle of will interpretation.

In trying to determine what the testator intended, the courts have developed some other principles to help interpretation, such as:

• reading the entire will;
• assuming that the testator intended the words to have their ordinary meaning unless there is some compelling reason to do otherwise; and
• considering the use of extrinsic evidence to determine the testator’s intention.

How can extrinsic evidence aid will interpretation?

The Wills and Succession Act allows the court to review the following types of evidence to help determine the testator’s intent:

• evidence of the meaning of the words used in the will, in an ordinary or specialized sense;
• evidence of the meaning of the will’s provisions in the context of the testator’s circumstances at the time of the making of the will; and
• evidence of the testator’s intent with regard to the matters referred to in the will.

This is referred to as extrinsic evidence and is admissible because this evidence can help provide clarity regarding the testator’s wishes. As the Court stated in Hanson v. Mecredi, determining the testator’s intention:

“… can only be done, in many cases, if the court has access to relevant evidence which records information, in existence at the time the testator signed her will, about the testator’s family and the nature of various family relationships, close friends, interests and many other facts which might influence the testator when engaged in the will-making process.”

Testator left a gift to one child in the form of a monthly income

In Strafford Estate (Re), the testator died leaving behind four children. The testator had a will that left one-half of the residue of his estate in equal shares to his four children.

In relation to one of the children, the will said:

“I direct that the Share that is to be transferred to my daughter Sherrie Strafford Whyte be used to purchase an annuity giving her a monthly income of at least $3,500, said amount to be indexed to and increase with the rate of inflation as reported by the Bank of Canada.”

Daughter dies four months after the testator

Sadly, this daughter died four months after her father of a drug overdose and before the testator’s personal representative obtained probate and purchased the annuity.

The daughter’s estate applied to the Court for advice on interpreting the will. The estate argued that the testator’s will meant that her share had vested by the time of her death and should be paid to her estate.

The testator’s estate argued that her father intended to only provide her with guaranteed income during her lifetime and that her death ended her interest.

Evidence showed the testator was concerned about daughter’s ability to manage money

The trial judge heard evidence from the lawyer who drafted the testator’s will, the personal representative of the estate, as well as his friends and family.

The evidence consistently showed that the testator did not want to provide the daughter with a lump sum inheritance because the testator was concerned about her ability to manage money, in part because of drug addiction concerns.

The testator tried to help his daughter and paid for her rehabilitation, but he did not want the money to be wasted. He thought that providing a monthly amount to his daughter would represent an amount roughly equivalent to that given to his other children.

The testator intended to provide his daughter only with income during her lifetime; Court of Appeal agrees

Informed by this evidence, the judge concluded that the testator intended to allocate a share of the residue for the purchase of a non-commutable, non-assignable annuity for his daughter that would limit what she received to a minimum monthly income for her life. The testator sought to avoid providing his daughter with a lump sum amount because he feared the money would be wasted.

As a result, the daughter’s estate was only entitled to the monthly amount that the testator’s estate paid to the testator’s daughter during the time between their deaths. However, the daughter’s estate appealed this finding.

The Court of Appeal agreed with the trial judge’s analysis and decided that the judge had properly considered the extrinsic evidence with respect to interpreting the testator’s intention. The judge committed no errors that warranted the Court of Appeal’s intervention.

Contact DBH Law in Calgary for Assistance with Estate Planning and Representation in Estate Litigation

The experienced team of estate lawyers at DBH Law in Calgary provides a full range of services in relation to estates, from estate planning to estate litigation. Our lawyers work closely with clients to help them ensure that their affairs are in order, which includes preparing a clearly drafted will. We also represent clients involved in estate disputes and take a pragmatic approach to try and resolve disagreements in a way that preserves the estate for the beneficiaries. We ensure that our client’s rights are protected and disputes are resolved in a cost-effective manner.

If you have questions relating to estate planning or administration, contact DBH Law through our online form or by phone at 403-252-9937 to schedule an initial consultation.