How does a court interpret a Will when the meaning of the Will is not particularly clear or makes no sense?
This issue has been debated by courts for a lengthy period of time.
In the recent 2021 Superior Court decision of Justice David Broad in Fletcher v. VanSickle, the guiding principles of the law were discussed at length. Picking up on the 2021 Ontario Court of Appeal decision in Ross v. Canada Trust Company, the court held “a court’s task can be stated simply. It is to determine the testator’s – the willmaker – actual or subjective intention as to how he or she intended to dispose of his or her property.” The general concept has been described as the armchair rule. “Placing the court in the armchair of the willmaker as they were preparing their Will. All of the circumstances, family relationships, assets of the willmaker at the time of making the will are taken into account in a lens through which to read the words contained within the Will. The Judge is to look at the entire Will and after full consideration of all the provisions and language used, try to find what intention was in the mind of the willmaker. The court should then strive to give effect to it and to do so unless there was some rule or principle of law that prohibits it from doing so.” An example of a prohibited clause would be one that was obviously racially prejudiced. The court is to assume the same knowledge the willmaker had at the time of making the Will in regard to the nature and extent of his or her assets, the makeup of his or her family and his or her relationship to his family members. Generally speaking, this armchair rule applies when the willmakers intention cannot be ascertained from the plain meaning of the Will’s language.
There is another interesting aspect to this which seems counterintuitive. At times, the court may make a an interpretation of a Will using the armchair rule even if the words in the Will themselves do not appear to be ambiguous or unclear. One can look at the Manitoba Court of Appeal 2015 decision in Zindler, which cited Feeney’s Canadian Law of Wills. It concludes that the most recent trend in Canadian cases seems to indicate that evidence of surrounding circumstances should be taken into account in all cases before a court reaches any final determination of the meaning of words. This is true even if the words themselves do not appear to be ambiguous or unclear.
The starting point is attempting to figure out what the willmakers’ intention was from the plain meaning of the Wills’ language and only when the judge cannot determine that intention, the judge is supposed to take a step back and consider the bigger picture of the surrounding circumstances applying the armchair rule.
It is not unusual for aggrieved parties attempting to attack a Will, to use evidence that arises after the date of the making of the Will to show how it was either completely unfair or unreasonable and therefore clearly could not have been the intention of the willmaker. However, that is contrary to the armchair rule. While a Will speaks as of the date of its death, for the purposes of interpretation, it is as of the date that the Will was drafted. What did the willmaker know at that time? If circumstances changed after that date, it was the responsibility of the willmaker to create a new Will.
