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.