Will Interpretation – The Armchair Rule

Date: 16 Nov, 2023| Author: Fred Streiman

In the interesting Saskatchewan case of Gilchrist v. Gilchrist decided in September 2023 by Justice Curry, we have a number of legal issues and a family tragedy laying atop each other.

The facts are relatively simple although quite sad. Within a family, a brother had been convicted of sexually assaulting his sister over a number of years. Not surprisingly, the sister had nothing to do with her brother for the balance of her life. The sister made a Will in which she left the residue of her estate to her parents. She used a lawyer. However, the lawyer did not do their job. A lawyer’s job is always when given instructions by the client, to ask, but what do you want to happen if this was to occur, and the most common example of that is what happens if the person you are leaving the residue to dies before you? In the sister’s Will, she made no such provision.

The “What If” question has its limits as there can be no limit to the possibilities of life. But the most obvious need to be addressed.

Not surprisingly, her parents died before her and then when the sister died six years later, there was an obvious gap in the Will which resulted in an intestacy. In plain English, the Will did not say where the majority of the estate was to go under the circumstances.

One of the other brothers, who was named as an executor, attempted to push the rules of Will interpretation to ask the court that it was obvious that the now deceased sister had never intended to leave any benefit to the brother that had been found guilty of sexually assaulting her.

The court looked at the rules of Will interpretation, which are relatively consistent throughout the common law jurisdictions of the world.

On a foundational basis, one would begin with the Supreme Court of Canada’s decision by Justice Lamont in Smith v. Chatham Home of the Friendless. I paraphrase Justice Lamont’s comments. “Interpreting a Will, it is the courts’ job to figure out the intention of the Willmaker, which is to be done by looking at the entire Will. Every word is to be read in its ordinary meaning, and if technical words are used, they are to be interpreted in their technical sense. In other words, common sense is to be used. However, where the words within a Will might have different meanings, the court is allowed to not only look at the words within the Will, but also the circumstances surrounding and known to the Willmaker at the time when he or she made the Will and adopt the meaning most intelligible and reasonable as being the Willmakers intention.” This later embellishment by the Supreme Court of Canada made 90 years ago has been commonly referred to as the armchair rule. For the longest time, the armchair rule was interpreted that you look at the circumstances surrounding the time the Willmaker wrote the Will and that which was outside of the wording of the Will only if the words were ambiguous. However, in 2021 the Ontario Court of Appeal in Ross v. Canada Trust seems to have widened that door further. Justice Brown citing a number of other cases have held that the armchair rule is an overarching framework within which a judge applies the various tools for understanding and interpreting a Will. Evidence of surrounding circumstances should be taken into account in all cases before a court reaches any final determination of the meaning of the words. This is true even if the words themselves do not appear to be unclear.

In the unfortunate Gilchrist case, Justice Currie quite properly drew a line in the sand. It was inappropriate for the court to make up an entire provision of a Will. Is not for the court to create a provision in the Will fulfilling the lawyer’s job of “what if this happens”. The tragic result of this error, be it by the drafting lawyer or the refusal of the now dead sister to turn her atAtention to the possibility , has left the court with no alternative but to simply apply the rules of what happens under the prevailing provincial law when there is an intestacy. The brother who had been convicted of sexually assaulting the sister many years ago ended up receiving a share of the estate.

As to the Royal Family it is with some curiosity that I note that the level of the trial court in Saskatchewan is called the “King’s Bench for Saskatchewan”. Further, the lawyers that appeared on the case both proudly wear the initials KC, which refers to Kings Counsel. Depending upon the circumstances, having KC after one’s name is either a sign of professional competence, seniority or political connections. Long live the King.

Multi Generational Homes No Written Agreement Trouble Unjust Enrichment Fails

Date: 02 Nov, 2023| Author: Fred Streiman

In the summer of 2023, Justice Mandhane of the Ontario Superior Court decided a case that related to a family argument between a widowed mother and one of her adult sons.

As is quite common, the Sidhu family occupied a home in Brampton in which not only the grandmother, the registered sole owner of the home lived, but as well her children, a daughter-in-law and grandchildren.

Much of the case revolved around the specific facts. The son who had apparently been the families’ “manager” for almost 20 years argued that by virtue of the significant funds he and his wife had injected into the home over that time span, they were entitled to a 50% interest in the house.

The son’s argument failed due to a lack of evidence.

The son attempted to argue that his mother had been unjustly enriched as a result of his efforts and as such was entitled to a 50% interest in the home. The argument which is based upon long standing area of law encapsulated in two Supreme Court of Canada decisions Moore v. Sweet, a 2018 decision, and the famous Kerr v. Baranowa 2011 decision. The test is whether or not one party was enriched, another party suffered a corresponding deprivation and if that economic transfer had some type of a legal reason for it. In essence, we have the question as to whether or not one side became richer while the other became poorer for no good reason. Factually, the son failed to prove that.  All of the money he and his wife had pumped into the house was treated as equal to rent.

The central theme and conclusion one must come to from the case is that if indeed there is to be a home in which significant finances are involved, and the parties have nothing in writing to prove their respective interests in the event of a disagreement, there is going to be trouble. One can imagine the time, effort and family friction that was caused when mother and son faced off against each other in court.


Date: 05 Oct, 2023| Author: Fred Streiman

In other blog articles, we have touched on what this author calls the horseshoe rule of Wills. Prior to January 1, 2022, for a Will in Ontario to be found to be valid, it had to meet the minimal requirements set out in The Succession Law Reform Act. However, since the onset of COVID, the law of Wills in Ontario have undergone a relative revolution. One of those revolutionary enactments was section 21.1 of The Succession Law Reform Act. It permits a judge if satisfied that a document accurately sets out what a person wanted in their Will, to certify that to be a valid Will of the Will Maker, even though it fails to meet some of the requirements of the law.

Also as discussed in our other blog articles, Justice Fred Myers of Toronto seems to have become a magnet for decisions in this soon to be exploding area of law.

I remind our readers that I have spoken repeatedly about how misguided section 21.1 is. It is a magnificent way of clothing what appears to be a flexible rule of Will interpretation, from what in reality is a money-making scheme for lawyers. Far be it from me to complain.

Justice Myers in the very interesting case of White v. The Estate of Violent White, a decision released on June 21, 2023, actually addresses a completely different issue, namely whether or not a party having a financial interest in an estate can go on a fishing expedition and at least ask to look at the drafting lawyer’s notes to see whether or not they contain any information that might buttress their attempt to set aside the Will.

Justice Myers quite properly deferred answering that question for a more fulsome hearing and cited the important decisions in Neuberger as well as the Johnson v. Johnson decision of the Ontario Court of Appeal in 2022. Justice Myers reminded all, that there needs to be at least a minimal evidentiary threshold of some evidence that would call into question the validity of a Will, that is not successfully answered by the responding party. In other words, you cannot simply take a wild shot and ask for discovery of information without at least a basis for pointing out suspicious circumstances and facts in support thereof.

But that was not the interesting portion of this decision. In the White case, you have a woman who upon approaching her deathbed wanted to do a new Will. She had spoken to a lawyer that she had chosen herself and made arrangements for a new Will to be prepared. The lawyer duly drafted a Will based upon the new instructions, and the woman’s son attempted to arrange the final appointment between mother and lawyer.  The lawyer arrived at the hospital and indicated that the visit was to review the draft Will and for it to be signed. When the lawyer arrived, the woman stated that she was not feeling up to discussing it and asked the lawyer to return another day. Five days later, the woman died without ever meeting the lawyer again or finalizing the new Will.

The interesting side point was whether or not the draft Will was enough, and that it might indeed be fixed by section 21.1 of The Succession Law Reform Act. Justice Myers poured water on that idea. To paraphrase the Judge, “I am dubious that section 21.1 could apply on these facts. The lawyer’s e-mail stating that she wanted to have a telephone conversation with the woman does not sound like a Will that was ready for signing. A draft Will is just a draft. It is common to see changes made as late as during the signing ceremony. Case law from Western Canada, where the horseshoe rule has existed for some time, discusses the need for a court ordered Will to record a deliberate or fixed and final expression of intention as to the disposal of the deceased property on death. It is hard to see how a draft Will can meet that threshold.”  In simpler language, Justice Myers is saying a draft Will is simply that a draft, and that until at least finally approved, you do not have a final expression. In the end, Justice Myers did not make a final decision on this on this point and deferred it to a fuller hearing on the point.

Dale Streiman Law LLP can raise another alternate fact situation. In our office, it is common before the client attends at the office to sign their Will, we will have a telephone or zoom meeting with the client and review the documents in detail. The clients will suggest any changes that they wish and then finally approve the draft. The only difference between the draft being reviewed by the client and the final version signed are dates in the vast majority of times. It is extremely rare for a further change to be made at the time of signing. Would this satisfy Justice Myers and the existing law as to whether or not a draft is indeed a reflection of the Will maker’s final expression of what they wanted in their Will. Great fodder for lawyers making money, not so certain that in reality all one is doing is giving clients a possible out when they have unnecessarily dragged out a process that they should have long earlier attended to.

Tough love, but heck someone has to say it.


Date: 18 Sep, 2023| Author: Fred Streiman

The facts of this case can be found at Part 1 of this blog

The court reviewed as we have in other blog articles various areas of law such as the law of resulting trust and undue influence, the most important of which is the 2007 Supreme Court of Canada decisions in Pecore and the 1991 Geffen v Goodman Estate case.

The presumption of resulting trust is based on the foundation that the court’s starting position is there must be a contract and an exchange of value rather than a gift. However, the presumption can always be rebutted by evidence and there was clear evidence in this particular case that indeed the intention was to make an actual gift.   In other words the starting point is no one does anything for free, and if you say it was for free prove it, or lose.

The father also raised an ancient equitable legal doctrine known as unconscionable procurement. It is debatable whether or not this indeed is the law and the Ontario Court of Appeal in the similarly named Geffen v. Gaertner 2019 would not  confirm that unconscionable procurement indeed is valid law. The Nova Scotia court in Fairfield described the doctrine as follows; the doctrine of unconscionable procurement applies where the party seeking to set aside a wealth transfer transaction is able to prove two things.  A person obtains a significant benefit from another by gift or other voluntary wealth transfer and the person obtaining the enjoyment of that benefit was actively involved in procuring or arranging the transfer from the maker.

When those two elements are present, presumption of fact operates that allows the court to infer that the transfer was not properly explained or fully understood by the maker. The court is entitled to scrutinize the situation with its moral sense awakened with a view to deciding whether the maker fully appreciated the effect nature and the consequence of the transaction.

In as much as the doctrine is one of equity, the court is ultimately being asked to decide whether the transaction is conscionable or unconscionable. The onus is on the attacker to prove that the maker did not enjoy the full appreciation mentioned above and that as a result is unconscionable.   In plain English and as an example.  Adult son takes Dad to his lawyer and has Dad sign documents gifting Son a large bank account.  Son’s sister learns years later of this “Gift” and claims unconscionable procurement.  It is sister’s job to get her foot in the door.

In essence, there may have been both doctrines at play, namely unconscionable procurement and further the doctrine of resulting trust.  However both of them merely aid the court when there is a lack of clear evidence one way or the other.  In this particular case, the evidence was clear to the point and we simply had a father who had changed his mind after being warned repeatedly and independently of the consequences of his actions. Sorry no take backs.


Date: 18 Sep, 2023| Author: Fred Streiman


We have the elsewhere discussed the legal components of a gift and its ramifications. We suggest our readers simply use the search bar on our website to find a number of blogs touching on “gifts”.

A common fact scenario when a court examines the issue of a gift arises from elderly parents being preyed upon by their greedy children or similar abuses. In the interesting British Columbia Court of Appeal decision in Sandwell v. Sayers, a April 2023 decision of the court we have a set of circumstances that to the average reader would clearly seem to be a gift that had been made in the fullest and eyes wide open of circumstances. The difficult father had arranged to make a gift of a 1/2 joint tenancy interest in his home to one of his adult daughters. This could only be done with the services of a notary public in British Columbia, who took great care to ensure that the father knew what he was doing. The notary public made the father think about the transfer, had explained the ramifications of the transfer, made the father sign various documents confirming to the father the legal effect and irrevocability of the gift, and despite all of these warnings by the notary public, the father proceeded and signed the transfer of the half interest in his home gifting it to one of his daughters.

On December 4, 2020, the father met with the notary public and signed the documents relating to the transfer. The notary dragged his feet to ensure that the father again had been given sufficient time to ensure that his intentions would remain unchanged and the documents effecting the transfer were not registered for almost another week. Eleven days after the transfer was registered, the father contacted the notary public and asked for the transfer to be unwound.

The trial court was not impressed by the father and dismissed his application to set aside the transfer. Father was still not satisfied and appealed to the British Columbia Court of Appeal. The Court of Appeal was similarly not impressed and in this author’s view, simply said sorry no take backs, you knew what you were doing and it is too late.  The court reviewed as we have in other blog articles various areas of law such as the law of resulting trust and undue influence, the most important of which is the 2007 Supreme Court of Canada decisions in Pecore and the 1991 Geffen v Goodman Estate case.

The law is described more fully in part 2 of this blog.


Date: 15 Sep, 2023| Author: Fred Streiman

The Honourable Justice Chang in July of 2023 rendered his decision in the case known as the Estate of Harold Franklin Campbell.

The case centered around section 19(1)(b) of The Succession Law Reform Act that reads “a Will that has been…revoked is revived only…by a codicil that shows an intention to give effect to the Will.. that was revoked”.

More simply put, a Will that has been cancelled can be brought back to life if it is done by way of a written amendment known as a codicil and in accordance with the formalities of The Succession Law Reform Act that shows an intention to bring the Will back to life.

As we have discussed in other blog articles commencing January 1, 2022, the law was amended to create what this author calls the horseshoes rule. All the formalities under The Succession Law Reform Act  “SLRA” are not absolutely necessary as long as you get close enough and a court can be convinced that the document was indeed a reflection of what the deceased wanted within their Will.

The facts are relatively simple.  Harold Campbell made a Will, and named his children as his beneficiaries. He remarried and under the law as it then existed (it no longer does), the Will was revoked also known as cancelled by that subsequent marriage. After the date of marriage, Harold signed two notes, which he signed and stapled to the inside cover of his original pre marriage Will.

The judge by reading the two holographic aka handwritten notes, thought it was quite clear that these notes were to be amendments to the cancelled Will and showed an intention by Harold that he still wanted to give effect to the old pre marriage Will.

In other words, it was clear to the presiding judge that there was no difficulty fitting within the four corners of 19(1)(b) of The Succession Law Reform Act.

The judge however felt that the horseshoe rule, more formally known as section 21.1 (2) did not apply. For once a judge felt that this was a bridge too far and could not be used to bring back a Will from the dead.

An interesting small corner of the law of wills and estates, but an important one.

Justice Charles Chang born and raised in Toronto with primarily a background in commercial litigation and was only appointed April 4, 2022. In other words, fourteen months into the job, an interesting decision by Justice Chang.

Punishing A Bad Executor

Date: 14 Sep, 2023| Author: Fred Streiman

In May of 2023, the Honourable Madam Justice Gilmore, who has extensive experience in Wills and Estates finally dealt a significant penalty to what has to be one of the world’s worst executors. Lorali Queripel , one of the three children of the late Betty Shaddock was named her late mother’s executor along with her husband. The mother died in August of 2002 and the executor led the various beneficiaries of the estate, of which she was only one, on a merry chase for over two decades. Despite promising to live up to her basic obligations as an executor, she failed to do so. One of the primary assets of the estate was the mother’s condominium.  The only saving grace for Lorali is that she did not use her executor powers to sell the condo and keep the proceeds for herself.

Aside from that, just about every box that can be ticked off by a bad executor was done so by Lorali. She did not communicate with the other parties having a financial interest in the estate for over 20 years. Despite being subject to numerous court orders to provide the basic information that any executor is required to maintain, she ignored those court orders. She spent most of her time displaying complete indifference to the court process. Judges are humans and do not appreciate their orders going unanswered, especially with no good excuse. As Justice Gilmore pointed out, as Estate trustee aka Executor, Lorali was a fiduciary with fiduciary obligations towards the Estate and its beneficiaries. That coupled with her blatant disregard of numerous court orders left the court with only one course of action. Lorali was ordered to pay the other beneficiaries and the Estate damages of $175,000. $125,000 of that were the past legal fees expended by the Estate pursuing Lorali. One must appreciate that the court process is slow, cumbersome and ludicrously expensive. The other beneficiaries needed to invest vast sums to remedy Lorali’s outrageous conduct.

Additionally at the conclusion of what was hopefully the final motion in which all of these awards were made against Lorali, she was required to reimburse the estate an additional $50,000 for the cost of this motion.

Finally, the Estate sought $100,000 in punitive damages against Lorali for her outrageous behavior. Punitive damages are rarely granted and are ordered only in the most exceptional of circumstances. The court looked at a 2012 Superior Court decision in Walling v. Walling.  In those circumstances, the executor did indeed take the Estate’s assets and use them as his own. In Walling, punitive damages of $100,000 were awarded. Justice Gilmore penalized Lorali by awarding $50,000 in punitive damages against her. Lorali in all likelihood will find herself having all of her interest in the estate being consumed by the various awards made against her, which total approximately $275,000.  All of that could have been avoided had Lorali simply acted in the responsible fashion that no doubt her late mother had trusted her to provide.

Fixing a Will After Death – The Horseshoe Rule

Fixing a Will After Death – The Horseshoe Rule
Date: 13 Sep, 2023| Author: Fred Streiman

The COVID-19 virus has changed the world as we have known it, and those changes have reached into the previously set in concrete laws dealing with Wills and Estates.

Estates of anyone who died after January 1, 2022 may take advantage of an amendment to The Succession Law Reform Act. Specifically, section 21.1 which we have already canvassed in earlier blogs such as Changes to the Law of Wills and Surrogate Will signing Part 3, permits a court to after the fact fix a Will so long as the court is convinced that the document before it sets out the testamentary intentions of a deceased. In other words, if the piece of paper, even though improperly signed or drafted, does indeed properly reflect what the deceased wanted to happen with their assets upon their death it can be deemed to be their will. I have described this as changing the law of wills to into a game of horseshoes. In this author’s view, this changes the law from one of certainty when all one must do is follow the very few formal rules set out in The Succession Law Reform Act into now a new arena and money-making process for lawyers.

There have been almost no decisions under this under this new law, however the Honourable Justice Frederick L. Myers seems to have attracted the litigation that does exist in this area.

Justice Myers in his brief decision in Vojska v. Ostrowski decided that a Will that was improperly signed solely due to the negligence of the lawyer that drafted and witnessed it, could be remedied under this provision.

If one has ever signed a Will before a lawyer, the scene is usually the following. Commonly you will have a husband and wife, the lawyer and a clerk. There are numerous documents including Powers of Attorney, Directions and the Wills and a Joint Retainer Agreement to be signed. These if careful attention is not paid, can float around and it is not impossible unless a strict routine is imposed for a signature to be missed.

This author early in my career was embarrassed when a client pointed out that my signature had been missed.

From that day onward, my routine is quite strict. My signature as a witness does not happen until it has been signed by everyone else, so that when it is my time to sign, I can see that it has already been executed by all but myself.

Unfortunately, in the above noted case, the lawyer involved was not as detail oriented as he should have been and he forgot to witness the Will of the deceased. It was signed by everyone but he.

Under the law prior to January 1, 2022, the remedy would have been a lawsuit defended by the lawyer’s negligence insurer, who would have made-up for any loss.

Justice Frederick L. Myers felt that this circumstance perfectly fit within section 21.1 (1) of The Successional Law Reform Act. There was a fair amount of evidence, that this was simply a screw up on the part of the lawyer and that the intent was for the documents signed by the now deceased was indeed meant to be her Will. Justice Meyers stated “…part of the goal of paying a professional is to produce valid outcomes and to avoid the common errors that lack of ordinary care produces”.

A bit of background on Justice Frederick L Myers with whom the author shares a forename. Born and educated in Toronto, the distinguished jurist clerked at the Supreme Court of Canada for Chief Justice Bora Laskin. Serious credentials in the legal field. Justice Frederick L. Myers also obtained a Masters of Law from Harvard, which he proudly cites as his most distinguished credential.

Justice Frederick L. Myers also made companion decisions in Cruz v. Public Guardian and Trustee in which he again held that the facts met the test under the amended Succession Law Reform Act. Justice Cruz also further made some comments upon the new law in the decision of White v. White.

The moral of the story is that there is a methodology for fixing a Will, if it meets the appropriate test. However as the author stated earlier, with just a little bit of care and attention to detail, a client can take advantage of the relatively inexpensive cost of having a lawyer prepare a Will and the all important accompanying Powers of Attorney. Otherwise, people continue to find themselves under the thumb of a pennywise pound foolish decision.


Date: 03 Mar, 2023| Author: Fred Streiman

One of the underused statutes in the area of Estate Litigation and Probate is The Estates Act.  This 52 paragraph Act lives in the shadow of its substantial brother The Succession Law Reform Act.

However, it contains many useful tools to those involved in a fight over probate and the validity of a Will. One of those tools is forcing the production of a Will. This remedy exists in section 9 of The Estates Act. Whether or not there is an existing court action or even if someone is seeking or not seeking probate, a person may apply to the court by way of a motion and ask the court to order the production of the Will.

The Act also gives the court the authority to force a person that you believe knew or has any information with respect to the existence of a Will to be examined in open court or before the registrar or any other person as the court may direct.

Often in a fight over probate and the validity of a Will, there is an earlier or perhaps later document that is lurking in the background. These are useful tools when one suspects that there is more than what has been produced or someone knows more than they are telling and need to be forced to release that information.

Surrogate Will Signing Or How Does Someone Who Is Paralyzed Sign A Will – Part 3

Surrogate Will Signing 3
Date: 20 Feb, 2023| Author: Fred Streiman

Substantial Compliance – Fixing a Defective Will After Death

Part 3

In the first 2 parts of this commentary on the Meyer case ( Part 1 and Part 2 ) which primarily discusses a surrogate signing a will, we saw how a “Probate” application failed.  However when one looks at the case from a present day view point there is a further twist.  As of January 1, 2022 ( 11 years after the Meyer case ) the law was changed on the formality of wills.

In this author’s view it became foolishly a game of horseshoes.  A very expensive game of horseshoes.  Referred to in the legal world as substantial compliance, the author refers to it as “close enough”.  The Succession Law Reform Act (the primary but certainly not the only law governing wills ) at section 21.1(1) in essence states – If you can convince a judge that the document – which does not meet the requirements of the simple formalities for a will set out in the Act – and really they are not numerous – but can show that the defective document is what the Testator wanted his or her will to say – the judge can order that the document is a valid will.  There are no Ontario decisions on the subject yet.  But would the Will questionnaire completed by Mr. Meyer meet the new test?  Of course Meyer was decided in 2011 and the law was changed 11 years later.

So in conclusion, there is a ready methodology of meeting the problem of physical limitations. However, the drafting lawyer needs to be careful to ensure that there is evidence, and that all the other factors set out in The Succession Law Reform Act are met. This is not a step to be taken by someone without a great deal of experience in the law of Wills and Estates.