Apologies for this blog sounding like an advertisement for experienced Will and Estate Lawyers. The recent Ontario Court of Appeal decision in Haddock v. Haddock underscores the importance of the “What if Lawyer”. The case which went all the way up to the Ontario Court of Appeal dealt with the estate of a woman who died in 2022. She wrote her Will in 2012 and at that time a major part of her estate was a family cottage, which of course considering our love of properties on the shore of a lake, escalated dramatically in value from the date that she drafted her Will until she died. For family reasons, it was important that the cottage end up in the hands of one of her three children. Her will called for her estate to be divided equally amongst her three children. However, what was not clear from her Will was whether or not that cottage, which was worth more than a third of the estate, needed to be equalized with the deceased’s other children. In essence, the son who inherited the cottage which was more than one third of the value of the estate, did not want to pay a premium to his siblings. The court used the armchair rule of Will interpretation, which is discussed in a number of recent cases starting with Ross v. Canada Trust Company 2021 ONCA and the Court of Appeal of Manitoba in Zindler. It asks the court to look not only at the words of the Will, but were the surroundings, circumstances and most importantly the intent of the willmaker at the time of the wills signing. Estate Litigation Lawyers are always neck deep in these issues.
It is not difficult to consider the amount of effort that is required at a trial to meet the wide-open canvas of evidence that can be put before the court to assist it in interpreting a Will. Wide open usually also means very very expensive. Wills and Probate Lawyers need to be attuned to these issues.
The thrust of this blog is the importance of a What if Lawyer. When the Will was written, the question that should have been put to the testator had she indeed meant to divide her estate equally amongst her three children is what if the value of the cottage is greater than one third of the value of her entire estate. It would not have been impossible for the willmaker to have spent all of her other assets taking care of herself at the end of her life in contrast with a cottage that if it was not sold could increase in value. The what if scenario. At our firm, we do our best to ask these what if questions to the willmaker who often have not considered that possibility.
