Say What You Mean in Your Will – Because a Court Probably Won’t be Able to Figure it Out for You

Happy New Year!

The necessity for a testator to clearly set out his or her intentions in a will is trite.  As a recent Nova Scotia case points out, if a will does not properly deal with the distribution of assets and the intention of the testator is otherwise unclear, the Courts will not “re-write” a will by inferring how the testator intended to deal with such assets.

In Re Das Estate, the testator devised most of his estate to his wife in trust for her own use in her sole and unfettered discretion.  There was a notable exception though.  An investment account worth almost $1 million was not included in the devise to the wife.  The only provision in the will for that account was that, should the wife not survive the testator by 10 days, the balance of the estate (after a devise to his daughter which again excluded the investment account) was to be distributed to various educational institutions and charities.  The wife did survive the testator by more than 10 days.  So what of the investment account?  On a motion for directions, the Court was asked how it should be disposed of.  Could the Court determine from the will and any admissible extrinsic evidence how the testator intended to deal with the account?  Did he mean to leave it to the wife? – the daughter? – the charities?  Is there an intestacy with respect to the account?

The Court went through the process of determining when it can and cannot determine the intention of a testator for the purpose of interpreting a will.  Known as the “armchair rule” of interpretation (because it requires the Court to put itself in the position of the testator), the rule has two requirements:

“The first is that the court must be satisfied that there has been an inaccurate expression by the testator of his intention, and the second is that it must be clear what words the testator had in mind at the time when he made the apparent error which appears in the will.”

The Court appears to have been satisfied that there was an inaccurate expression by the testator of his intentions concerning the investment account but ultimately found that there was insufficient evidence to determine what his intentions were and any inference by the Court would be nothing more than speculation.  Unless there is some indication from other portions of the will or reliable extrinsic evidence as to what was intended, the Court will not infer an intention.  While the Court did find that reliance on extrinsic evidence has been expanded to allow its use outside of situations of patent ambiguity in a will, it was not able to find evidence in this case that would indicate upon which of various potential beneficiaries the testator wished to bestow the investment account.  The result is that, despite the general rule that Courts should strive to avoid an intestacy, the judge here found he had no other choice but to declare an intestacy with respect to the investment account, resulting in it passing to the wife and daughter and leaving the charities out.

I would include a moral here but I think that my intention can be reasonably inferred.

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