Construction of Wills – Grandchildren and Great Grandchildren Restricted to Legal Descendants

Construction of Wills

Re Lang 2011 BCSC 972 involved a court application for an interpretation of the commonly used words “grandchildren” and “great grandchildren” that were used in the testator’s will.

The testator divided the residue of her estate to her grandchildren and great-grandchildren. At the time of her death there were two grandchildren and one great

grandchild through her two adopted children.

The testator also had 10 grandchildren and 17 great-grandchildren through her two stepchildren.

The executor brought a petition for an interpretation of the testator’s will in regards to whether grandchildren and great-grandchildren included step relatives.

The court ordered that the words grandchildren and great-grandchildren in the testator’s will were interpreted as meaning legal descendents only,as that was

consistent with the most natural and ordinary meaning of the testator’s words.

There was no convincing reason to justify a departure from the legal presumption in favor of legal descendents.

There was minimal information about the testator’s relationship with her  step grandchildren and step grreatgrandchildren.

The testator’s handwritten notes listing legal descendents me contemporaneously with the execution of her will, was most significant during those notes were

in harmony with the natural language of the will.

Nothing in the solicitors notes suggested that the testator intended to include her 27 other grandchildren and great grandchildren as residual beneficiaries.

The testator’s feeling of love and affection for her step relatives was not inconsistent with her leaving residue to only her legal descendents.

The court made the following comments:

Finch J. as he then was, said at para. 7 of Widdess Estate v. Cunningham, [1984] B.C.J. No. 3052 (S.C.):

In construing the language of a will the court looks to the meaning which the words used would have had for the Testator. The court places itself, so far as is possible, in the position of the Testator when he made the will, and construes it in light of the facts and circumstances then known to him. The Testator’s intention is to be gathered from a construction of the will, as a whole, and not solely from words used in that part of the will said to be unclear or ambiguous. And, the will is taken to speak as of the date immediately before the Testator’s death.

See also, In the Matter of the Estate of Robert Selkirk Wood, 2010 BCSC 792, para. 12.

[15]         Surrounding circumstances cannot, however, add to or contradict the plain meaning of the will: Hickey Estate v. Greig et al (1987), 27 E.T.R. 17 [Hickey], at 22.

[16]         The will is the primary evidence of the testator’s intent. The court will not give effect to other evidenced intent in a way that overrides what the testator has expressed in the probated will:  Jensen Estate (Re) (1990), 37 ETR 137, at 140.

[17]         The judge’s duty is to decide what a particular testator intended in their individual circumstances. They should not to colour their interpretation of that intent based on what another court has found another testator, in other circumstances, intended by words they used: Hickey, page 23. It is noteworthy here though, that the court in Hickey thought interpreting the will in a way that would see the provision benefiting 8 grandchildren instead of 7 was not an addition to or variation of the will. In the case at bar, one of the two possible interpretations sees 3 residual beneficiaries, the other interpretation 30.

[18]         A judge can consider the testator’s “intimacy” with the potential beneficiaries: Re Lupton (1964), 44 D.L.R., (2d) 535, para. 40.

Trevor Todd

Trevor Todd is one of the province’s most esteemed estate litigation lawyers. He has spent more than 40 years helping the disinherited contest wills and transfers – and win. From his Kerrisdale office, which looks more like an eclectic art gallery than a lawyer’s office, Trevor empowers claimants and restores dignity to families across BC. He is a mentor to young entrepreneurs and an art buff who supports starving artists the world over. He has an eye for talent and a heart for giving back.

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