It makes common sense that a Will only applies to the net assets owned by the Will Maker, aka the testator, that he or she had on the date of their death.
However, it is not unusual for even experienced Wills and Estates lawyer to ignore the effect of the Succession Law Reform Act section 22. It is a relatively brief section and we set it out in its entirety.
Will to speak from death
22 Except when a contrary intention appears by the will, a will speaks and takes effect as if it had been made immediately before the death of the testator with respect to,
(a) the property of the testator; and
(b) the right, chose in action, equitable estate or interest, right to insurance proceeds or compensation, or mortgage, charge or other security interest of the testator under subsection 20 (2). R.S.O. 1990, c. S.26, s. 22.
Unless the Will strongly points to being interpreted as of the date of writing rather than the date of death, almost all provisions of a Will are interpreted as if the Will was written the day the Will Maker died.
This lens can have an interesting effect and this was clearly shown in the Ontario case that found its way all the way to the Court of Appeal titled Van Sickle Estate v. Van Sickle.
The Will was written in 1985 when the Will Maker along with her husband owned a fully operating farm. One of the children worked far harder than his siblings in working the farm. However over time, the farm was converted into a rental property whereby it was rented out for others to farm. The son who had devoted, it appears the majority of his life in assisting his parents in operating the farm, was granted an option to purchase the farm at a far lower than market value price.
The plain reading of the Will seemed to grant that option only if it was an ongoing farming operation, rather than the situation that existed as of the date of death.
At the trial level, the judge used the common sense interpretation of the appropriate clause within the Will.
However in 2022, the Ontario Court of Appeal brought everyone back to the actual law, namely the above quoted section of the Succession Law Reform Act. If one interpreted the Will as if it was written the day before death, the farm still met the definition contained within the four corners of the Will and as such the trial decision was overturned.
Section 22 is important and when a Will is being drafted, one needs to take a close look at what may occur with the passage of time.
A careful lawyer will generally object to specific bequests (gifts) of assets to specific people as one never knows what assets one will own on the date of your death.
Conversely, if the Will Maker insists on leaving specific assets to specific people, one needs to spend some time looking at all the possibilities before drafting a Will.
A great deal of time and money was spent on the Van Sickle case, which could easily have been avoided had a hypothetical question been put to the Will Maker at the time of that the Will was written.
