Keeping Your Will Out of Court

1. INTRODUCTION

Probably the best way that a lawyer or Notary can keep his or her Will out of court is to always bear in mind the end use of the product.

The primary goal of a client in executing a Will is to ensure that his or her lifetime accumulated wealth will pass to the estate in accordance with the testator=s directions. For the product to achieve that result requires it to be successfully admitted into probate by an appropriate court.

The professional draftsperson must have a solid grasp of not only the requirements of the Wills Act, but also, an understanding of the myriad of legal issues that can interrupt, or derail, the achievement of a successful Aproduct@ being admitted to probate. In order to be successful in this regard, the draftsperson must be acutely aware of the nature of potential litigation facing the Will and fully appreciate the legal issues that relate to such litigation. It is a huge responsibility, and a vast topic of law. This paper is certainly not an exhaustive examination of everything that can Abite you@ when preparing Wills, but I believe that most of the significant topics have been addressed.

Accordingly, the following topics related to the proper preparation of a Will are discussed in this paper.

2. THE NATURE OF A WILL

The law recognizes two basic ways in which persons may make gratuitous gifts of property:

1. by inter vivos gift and;

2. by testamentary disposition.

A donor makes an inter vivos gift when he or she intends the transfer of interest to be immediate and irrevocable. The gift is perfected during the lifetime of the donor. For a valid inter vivos gift, there must be evidence of a donative intent of the donor to be unconditionally bound by the transfer, coupled with the delivery of either the subject matter of the gift or by some appropriate indicator of title.

A testamentary gift on the other hand occurs when the donor intends to make a gift that is effective only upon the donor’s death, and is revocable until then. The gift is said to be “dependent on death for its vigour and effect.” Any instrument that is entirely dependent for its vigour and effect upon a death will be held to be testamentary.

A true testamentary gift, when properly executed, is a Will. It confers no interest on its beneficiaries, other than hope, until the unrevoked Will takes effect by the testator’s death.

3. ELEMENTS OF A WILL

There are basically four requirements.

A) Intended to Have Disposing Effect

A Will must express the testator’s real donative intention. It will not be a valid Will if the testator merely writes a statement importing information about his or her future intentions regarding his or her Will. Another example is where undue influence has been exerted upon the testator. As the testator is not expressing his or her true intention, the Will should be invalid.

B) Intended Not to Take Effect until After Death and to Be Entirely Dependent on Death for its Operation

If at the time of the execution of the document, the document is legally effective to pass some immediate interest in the property, no matter how slight, the transaction will not be classified as testamentary. If the transaction is not testamentary, the property will not be included as part of the estate and will not be available for creditors. If a document is not executed as a Will, and appears to pass property to other persons on the death of the person who owned the property, the validity of the instrument is likely to be called into question as an attempt to make a Will and evade the consequences of a testamentary act. The fact that a document describes itself as a Will and is executed as a Will does not necessarily make it testamentary. The entire document will be rejected from probate if all of its dispositions are operative before death. However, a part of the document that is testamentary, because it has no operation at all until death, may be severed and admitted to probate.

C) Intended to Be Irrevocable

A Will is revocable even when it is expressed to be irrevocable and even if the testator covenants not to revoke it. Even a statute such as the Wills Variation Act, which allows a court to vary a Will, does not alter the revocable essence of a Will. When a Will is revoked in breach of a contract not to revoke it, the testator or the estate may be liable in damages or subject to some equitable remedy. Where the Will is a mutual Will, the promise not to revoke may give rise to a constructive trust that is irrevocable, in favour of the Will’s beneficiaries. The term “mutual Wills” refers to Wills that dispose of property belonging to two persons, usually a husband and wife, who have agreed to pool their property and to provide, by their Wills, for its disposition according to an agreed scheme. Persons who make mutual Wills usually agree not to alter or revoke them without the other’s consent, and it is out of this agreement not to revoke that a constructive trust may arise. The agreement not to revoke may be incorporated in the Will by recital or otherwise, or it may be established outside of the Will.

D) Executed in Accordance with the Wills Legislation of the Appropriate Jurisdiction. (See Part Two in this article.)

4. FORMALITIES FOR MAKING A VALID WILL

Section 3 of the Wills Act states that a Will must be in writing, but there are no restrictions as to the materials on which, or by which, it may be written, or as to what language may be used. It may be handwritten or typed, but if both a pencil and an ink pen are both used, there is a presumption that the pencil writing was only deliberative and it will be excluded from probate unless the court decides that the testator intended to include it.

Signature by Testator

The signature of the testator must be intended as an act of execution of the Will. The mark of the testator is a sufficient signature whether he can write or not. Another person, in the testator’s presence and by his direction, may sign a testator’s name on behalf of the testator. Section 4 of the Wills Act (excluding military forces while on active service and mariners in the course of a voyage) requires that a Will be signed at its end by the testator or signed in the testator’s name by some other person in the testator’s presence, and by the testator’s direction. The testator must make or acknowledge the signature in the presence of two or more attesting witnesses, all present at the same time, and then the two or more of the attesting witnesses must subscribe the Will in the presence of the testator.

Place of Signature

Section 6 of the Wills Act states that a Will is deemed to be signed at its end if the signature of the testator, made either by the testator or the person signing for the testator, is placed at or after or following or under or beside or opposite to the end of the Will so that it is apparent on the face of the Will that the testator intended to give effect by the signature to the writing signed as his or her Will.

The same section states that a Will is not rendered invalid in any of the following circumstances:

a) the signature does not follow immediately the end of the Will;

b) a blank space intervenes between the concluding words of the Will and the signature;

c) the signature is placed among the words of a testimonium clause or of an attestation clause or follows or is after or under an attestation clause, either with or without a blank space intervening, or follows or is after or under or beside the name of a subscribing witness;

d) the signature is on a side or page or other portion of the paper or papers containing the Will on which no disposing part of the Will is written above the signature; and

e) there appears to be sufficient space to contain the signature on or at the bottom of the side or page or other portion of the same paper on which the Will is written and preceding that on which the signature appears.

Who Can Be a Witness?

The requirement that a witness be present refers to the witness’s mental as well as his or her physical presence. A blind person is not capable of being a witness to a Will. A blind testator may sign with a signature, however, by a mark, or by directing a third person to sign on his or her behalf. In each case, the attestation clause should reflect what has occurred and also confirmation that the Will was read over to the testator prior to execution.

Section 10 of the Wills Act states: “If a person who attested a Will was at the time of its execution or afterward has become incompetent as a witness to prove its execution, the Will is not on that account invalid.

This section does not give effect to a disposition or direction that is underneath the signature or that follows the signature or to a disposition or direction inserted after the signature was made. Any disposition under or following the signature is invalid. See Re Brown Estate (1953) 10 W.W.W. (N.S.) 163.

Section 11 of the Wills Act provides that if a Will is attested by a person to whom or to whose then wife or husband a beneficial devise, bequest or other disposition or appointment, or affecting property, except charges and directions for payment of debt, is thereby given or made, the devise, the bequest or other disposition or appointment is void so far only as it concerns the person so attesting, or the wife or the husband or a person claiming under any of them but the person so attesting is a competent witness to prove the execution of the Will or its validity or invalidity.

Section 12 of the Wills Act provides that a creditor of the testator is a competent witness to prove the execution of the Will or its validity or invalidity.

Section 13 of the Wills Act provides that an executor may be a valid witness to the execution of the Will.

The witnesses need not know that the document is a Will. It is sufficient for the witnesses to see the testator in the act of writing his signature, although they do not see the signature and do not know what he is writing. It does not suffice if a witness, though present in the same room, is not aware that the testator is writing. Similarly if a witness departs before the testator completes his intended signature, this does not suffice. The testator must acknowledge the signature by his words or conduct. An express acknowledgment by the testator is desirable but not essential and no particular form of words is required. It is sufficient that the testator, or someone in his presence and on his behalf, simply request the witnesses to sign the document before them, without telling him that it is his Will.

The attesting witnesses must subscribe with the intention that the subscription made should be an attestation of the Will, and evidence is admissible to show whether such was the intention or not. A signature made without any intention of attesting is excluded from probate, but there is a presumption that a person signing at the end of the Will does so as a witness.

Witnesses need not sign by name; initials or description, or a mark, are sufficient if intended as the signature of the witness. Tracing over a previous signature with a dry pen is not a signature, as the witness must subscribe and not merely acknowledge previous signature. One witness cannot sign for another. Nor can the third persons sign for witness. A witness cannot sign in the name of another person if the witness intends to make it appear that the Will was attested by that other person. However a witness or a third person may guide the hand of a witness while he makes his signature. The mark of the testator will be valid even if the testator requires assistance in making it. See Re White (1948) 1 D.L.R. 572

Attestation Clause

While no form of attestation clause is required, nevertheless an attestation clause is highly desirable because it facilitates the grant of probate. In the absence of the sufficient attestation clause, the court would then require that due execution of the Will be established by affidavit evidence before granting probate in common form. An attestation clause raises a presumption that the Will was duly executed.

The Date

A Will should be dated, but if it is not, or is dated imperfectly, a grant may still be obtained. The court would then require at least one of the witnesses to swear an affidavit stating the date of execution.

Age

The testator must be 19 years or older, unless at the time of making the Will the person is or has been married or is a person as set out in section 5 of the Act, i.e., a member of the armed forces while placed in active service or a mariner at sea or in the course of a voyage. Section 7 of the Wills Act also prevents a person under 19 from making a Will in contemplation of marriage.

Alterations

Any alteration to the Will must be signed by the testator and the witnesses in the margin or near the alteration in the Will or at the end of or opposite to a memorandum referring to the alteration which is contained in the Will. (Section 17)

5. SOLICITOR/NOTARY NEGLIGENCE

The leading causes of claims and complaints against lawyers and Notaries with respect to Wills preparation are as follows.

_ Misuse of precedents

_ Failure to take adequate instructions

_ Insufficient knowledge of the law

_ Insufficient revision and review

_ Failure to apply the “what if” test

_ Too much haste in drafting the Will

I am listing for your review many of the frequent errors made by solicitors in Will drafting cases, that show up in the case law.

A. Failure to take detailed notes

B. Failure to declare that the Will was made in contemplation of marriage

C. Failure to advise marriage revokes a Will

D. Failure to include a residue clause

E. Failure to dispose of the entire residue of the estate

F. Incorrectly drawing a codicil that improperly reflects on the Will

G. Failure to include a specific bequest, such as a residence, contrary to the testator’s instructions, resulting in the gift following into the residue of the estate

H. Failure to properly conduct Land Title searches

I. Failure to sever joint ventures contrary to instructions and provisions of the Will

J. Incorrectly naming charities

K. Failure to promptly carry out testator’s instructions

L. Using words such as “issue”

M. Having a spouse of a beneficiary witness the Will

N. Missing limitation dates, such as the six month date from Letters Probate in the Wills Variation Act

O. Failing to probe the testator’s mind to determine sufficient mental capacity

P. Failure to interview the client in sufficient depth

Q. Failure to ascertain the existence of suspicious circumstances

R. Failure to react properly to the existence of suspicious circumstances

S. Interviewing the testator in the presence of interested party or parties

T. Failing to obtain a mental status examination

U. Using a term in a Will that is ambiguous requiring an interpretation

V. Taking instructions from a person other than the testator and failing to confirm instructions with the testator

W. Failure to provide a discretionary trust for mentally disabled children, or others who receive a form of state welfare

CASE LAW DISCUSSION RE: STANDARD OF CARE FOR SOLICITOR NEGLIGENCE

In the Jacobsen Ford – Mercury Sales Ltd. v. Sivertz 1980 1 W.W.R. 141, it was stated:

“A lawyer is obliged to act as a ‘prudent solicitor’ and must ‘bring to the exercise of his profession a reasonable amount of knowledge, skill and care in connection with the business of his client.’ There is no liability for mere errors in judgment because a solicitor does not undertake not to make mistakes but only not to make negligent mistakes. The determination is said to be a question of degree, and there is a borderline between negligence and no negligence: see Linden Canadian Tort Law 1977 pp. 108 – 109.”

In Marbel Developments Ltd. v. Pirani (January 24, 1994) Vancouver Registry No. C925970, it was held that:

“A solicitor’s duty is determined by the work undertaken rather than by his or her circumstances … the standard is only one of reasonable competence: it is not a standard of perfection Y or of strict liability.”

The court will first look at the nature and extent of the solicitor’s retainer.

The Supreme Court of Canada stated in Central and Eastern Trust Company v. Rafuse (1986) 31 D.L.R. (4th) 481 at 523:

AA solicitor is required to bring reasonable care, skill and knowledge to his performance of the professional service which he has undertaken: see Hett v. Pun Pong 1890, 18 S.C.R. 290 at p. 292.@

The requisite standard of care has been variously referred to as that the reasonably competent solicitor, the ordinary competent solicitor and the ordinary prudent solicitor.

LIABILITY TO DISAPPOINTED BENEFICIARIES

In 1978, Justice Atkins, in Wittingham v. Crease and Company 3 E.T.R. 97, found the lawyer negligent in having a spouse of a beneficiary witness the Will. This in turn caused that bequest to fail, and the solicitor was liable in damages for negligence to the “disappointed beneficiary,” in an amount being the difference between what the beneficiary received on an intestacy and what the beneficiary would have received after a successful application under the Wills Variation Act.

The following year, our Court of Appeal followed Wittingham (supra), and in Tracy v. Atkins 16 B.C.L.R. 223, found that despite the fact that the defendant’s solicitors did not represent the Plaintiff, a lawyer could be liable to an opposing party if he or she placed him or herself in a “sufficient relationship of proximity,” that he or she incurred a duty of care toward the plaintiffs.

Thus, the BC Courts in the late ’70s began to allow recovery on the basis of the Hedley Byrne principle. The principle of that case is that if a person seeks information from a person possessing a special skill and trust, that person to exercise due care, and if that person knew or ought to have known that reliance was being placed on his or her skill and judgment, he or she owes a duty of care to the first person. Further, absent express disclaimer of responsibility, the first person can recover damages for financial loss caused by the negligent misrepresentation, where spoken or written, of the second person.

Again in 1979, the British Court of Appeal in Ross v. Caunters, followed Wittingham and found liability against a lawyer to disappointed beneficiaries, where the lawyers had drafted a Will, forwarded the Will to the testator for execution, but failed to properly ensure that a beneficiary did not witness the Will. A beneficiary in fact did witness the Will and was successful in a claim against the lawyer for damages for the loss of the benefits under the Will.

Probably the current high watermark of solicitor’s liability to disappointed beneficiaries is the House of Lords decision of White v. Jones (1995)1 All E.R. 691.

In that case a testator had a law firm prepare a Will where he disinherited two daughters. He subsequently reconciled with his daughters and wrote a letter on July 17 to his lawyers requesting that they prepare a new Will with a specific gift to each of the two daughters. The law firm never did prepare the Will prior to the testator’s death on September 14. The two daughters brought an action for negligence and recovered their loss from the lawyers.

The majority of the House of Lords held that Hedley Byrne cannot properly give rise to a tortious liability. There is no duty of care other than to the client, and Hedley Byrne ought not to apply in cases of pure economic loss, and there is no “loss in not receiving a gift.” In the result, the House of Lords fashioned a new basis for a remedy based on a concept of “transferred loss,” that is since the deceased cannot take action against the solicitor for breach of the retainer, the right to do so was treated as transferred to the beneficiary.

It would appear that this White v. Jones approach gives rise to the argument that liability to the beneficiary is necessarily limited by the terms of the contract of retainer of the solicitor.

The following excerpt from the decision pretty well sums up this area of law:

“The very purpose of the employment of the solicitor is to carry out the client’s wish to confer a particular testamentary benefit on the intended beneficiary. There is no other purpose. If the solicitor negligently fails to achieve that purpose, justice requires that there should be some remedy available.”

There are now over 20 years of jurisprudence that clearly establish that a solicitor can be liable in negligence to a disappointed beneficiary, who loses his or her inheritance as a result of a lack of due diligence on the lawyer’s part that causes the disappointed beneficiary to not inherit as was contemplated by the testator.

Given the number of Wills that have been prepared over the years, and the ever increasing degree of the duty of care owed by a solicitor to his or her clients and beneficiaries, gives reason to believe that claims by disappointed beneficiaries against solicitors will only increase in the future.

6. SUGGESTIONS TO AVOID POTENTIAL LIABILITY

Take your time. Be cautious. Seriously consider charging your actual time on a Wills file. If your client objects, then educate the client about the amount of time needed to prepare a Will so as to ensure that the client’s lifetime accumulated wealth will pass to his or her chosen heirs.

2. When the Will is ready for execution, read it through a number of different times, each time assuming a different scenario involving contingencies relevant to the Will.

3. Do not be a dabbler. If you do not routinely draw Wills, then consider not doing them at all.

4. Use a checklist when taking instructions. The three Law Society Practice Checklist Manuals are an excellent start, and can be modified to suit you . I always use it when I cross-examine a lawyer or Notary. It usually makes them look incompetent if they have not followed a checklist.

5. Get all the necessary information about your client’s personal circumstances , including special situations such as a disabled child. It is essential to obtain complete information about the client’s estate, including details about the nature in value of each asset, its location, and how it is registered.

6. Review copies of earlier Wills, insurance policies, separation agreements, marriage contracts, or any other documents that may affect the client’s estate.

7. Take the necessary time to satisfy your responsibility to ensure that the client understands what the Will says, what it means, and that the client approves its contents. It is essential to go through the Will clause by clause with the client. The lawyer should attend upon the client to make sure that the Will is properly executed. If this is not possible, the lawyer has a duty to make sure that when the original of the Will is sent out for signature, it is accompanied with a very clear letter of instructions on how to execute the Will. You have a further obligation to subsequently ensure that the Will is in fact executed and is put in safekeeping.

8. It is essential to keep very careful notes of Will’s instructions and all communications with Will’s clients. If there is a mistake or an ambiguity and the drafting, it may be these notes that will determine the construction that the court will put on the Will. Notes are especially crucial if there are any unusual circumstances surrounding the Will. A few examples of this might include elderly or infirm testators, blindness or deafness, poor language skills, deathbed Wills, or testators whose Wills might be subject to challenge all the basis of undue influence or lack of capacity.

9. Utilize good legal assistants, but do not place too much reliance on them. Ultimately you cannot delegate your own responsibility to ensure that the Wills are prepared correctly.

10. Always file a Wills Notice with the Division of Vital Statistics. Although it is not mandatory, you should do so, particularly in light of the development of liability in favour of disappointed beneficiaries.

11. Maintain a Wills index with the name and address of the testator, the filing number of the Will file, the name of the executor, the date of execution of the Will, and the Will’s location.

12. Deliver a final letter to the client confirming the location of the Will, the date that it was signed, and reminding the client to review the Will from time to time. It is also essential to make the client aware that marriage revokes the Will and that divorce may affect the validity of some of the provisions of the Will.

13. Probe the testator’s mind to ensure that there is sufficient mental capacity to prepare a Will. If there is any doubt, a medical opinion should be obtained.

14. Always take instructions in the absence of potential beneficiaries or executors.

15. Record detailed reasons why any person who would be an appropriate object of the testator’s bounty is being omitted from the Will, and then consider the preparation of a detailed memorandum to the Will in conjunction with your notes.

16. Try not do codicils. It is too easy to make a mistake.

17. Do not use the words issue, per stirpes, per capita.

18. If a charity is a beneficiary in a Will, then it is imperative to do two things:

(i) understand the structure of the charity, and obtain the testator’s instructions on which part of the charity her or she wishes to benefit; and

(ii) ensure that the name of the charity is correct. The easiest way of understanding the structure of the charity and finding out its proper name is to telephone the charitable organization and explain your inquiry relates to a gift made by Will, and to speak with a person authorized to give you the information. See also each year’s Canadian Donor=s Guide for assistance.

19. Only sign one original, and make it clear that a copy is, in fact, a copy.

20. Use memorandums to explain why certain beneficiaries are not being provided for, such as in a Wills Variation situation. Set out the reasons in detail, and try to ensure that the reasons set out are factually accurate, and not merely vindictive and mean spirited.

21. Do not under any circumstances attempt to prepare a Will that is Aover your head@ or that you should not be preparing due to restrictions on your practice, i.e., Notaries doing Wills with discretionary trust provisions. AIf in doubt, refer it out@ should be your motto.

22. Try to use percentages, rather than specific amounts.

23. Ensure that the executors have sufficient powers to carry out their job. For example, if the testator has a business, then include powers to operate the business, such as the power to order inventory. Otherwise the trustee may only be able to operate the business much like a receiver, unless appointed special powers by the court, on application.

24. Do not include an RRSP designation clause, or revocation of an RRSP clause in a Will.

7. AMBIGUOUS DESCRIPTIONS: SOME RULES FOR RESOLVING THEM

Wrong Description

The principle of falsa demonstratio non nocet means that if, on considering the language of the Will with the aid of any admissible extrinsic evidence, the court comes to the conclusion that the testator intended to pass something and can determine what that something is, then the fact that the testator gave it a wrong description in his Will, does not prevent the Will taking effect in regard to the subject matter intended by the testator. This principle also applies to a wrong description of a person in a Will. For example in Re Gifford (1944) Ch.186, the testator by her Will made a gift of her war bonds. At the date of her Will, she held no war bonds, as 10 years previously they had been converted into consolidated inscribed stock. The court held that the latter stock passed under the gift.

But this principle has been held inapplicable to property which at the date of the Will the testator did not possess and did not contemplate possessing. Thus in Re Gifford, the court held that savings certificates purchased by the testator after the date of her Will did not pass under the gift of her war bonds.

2. Property Disposed of Before the Date of the Will

If this occurs the courts have three alternatives.

a) The court may decide that some other property possessed by the testator at the date of his Will was meant, and if so, then the latter property passes under the testator as a specific gift pursuant to the falsa demonstratio principle as occurred in Re Gifford.

b) The court may construe the legacy as general or demonstrative, and not specific. In that event, the legacy is provided for the beneficiary out of the testator’s general estate.

c) The court may construe the gift as specific, and decide that the testator possessed no property that fell within the description in the Will, and thus the gift fails.

3. The Testator Thought He Had Property, but Did Not

If the testator makes a specific gift of a thing he thinks he has but never had, or other thing that he intends to purchase, but does not, the gift is void. Where there is nothing answering to any part of the description, a specific gift fails.

4. Inconsistent Clauses

Where inconsistent clauses appear in the same Will, as a last resort, a Arule of thumb@ has been created, and may be applied so as to avoid having both clauses being held void for uncertainty. The rule is that the latter of the two inconsistent provisions prevails. It is a rule of last resort and will be applied only if the Will and the surrounding circumstances provide no means of reconciling the two clauses.

8. PRINCIPLES OF CONSTRUCTION AND INTERPRETATION OF WILLS

In construing a Will, the object of the court is to ascertain to the intention of the testator as expressed in his Will when it is read as a whole in the light of the surrounding circumstances in which it was made. Several of the main principles are discussed below, and while they do not really restrict the court in ascertaining the testator’s meaning, they give the court flexibility in its interpretation. In many instances, they attribute a presumed intention to the testator if the words of the Will have left the intention doubtful and uncertain.

The leading case is perhaps Perrin v. Morgan (1943) A.C.399 where Lord Simon stated:

“The fundamental rule in construing the language of a Will is to put on the words used the meaning which, having regard to the terms of the Will, the testator intended. The question is not, of course, what the testator meant to do when he made his Will, but what the written words he uses mean in the particular case-what are the expressed intentions of the testator.@

a) The Court Cannot Rewrite a Will

The function of a court of construction is to construe the testator’s Will, not to make a new Will for him.

b) The Court Does Not Guess

The court will not speculate upon what the testator may be supposed to have intended to do, and instead will only try to determine what that which the testator has written means. See Abbot v. Middleton (1858) 7 H.L. C. 68.

c) Identical Words Are Presumed to Have the Same Meaning

It is presumed that if a word or phrase is used with a clear meaning in one part of the Will, it is intended to bear the same meaning elsewhere if it is repeated and its meaning there is uncertain.

d) Effect to Be Given to All Words

As a general principle, when interpreting an ambiguous or uncertain clause, the court will strive to give effect to all the words used by the testator, unless to do so would be contrary to the testator’s plainly expressed intentions in some other parts of the Will.

An example of this principle may be found in the Ontario Court of Appeal decision in Re Stark (1969) 2 O.R. 881. In that case, the testator had made a gift to his “nephews” and the court interpreted that word to include nephews of the half-blood. When he made his Will, the testator had only one nephew of the whole- blood and the circumstances were such that it was unlikely that he would have any further nephews of whole-blood. The court concluded that the use of the plural in mentioning the nephews can only have been for the purpose of including nephews of both the full-and half-blood.

e) Presumption that Words to be Given their Ordinary Meaning

Prima facie the words and phrases used in a Will are to be given their ordinary meaning. But often a word used in a Will needs to be considered in its context as part of a phrase or sentence in order to ascertain its ordinary meaning. If the meaning of a word or phrase has changed with the passage of time, it is the ordinary meaning current when the Will was made that is relevant. If a word or phrase has more than one ordinary meaning, i.e., the word “money,” then no presumption will arise that if there is one particular meaning rather than the other, and the court determines the meaning intended by the testator by considering all the provisions of the Will in the light of the surrounding circumstances. In fact, in the decision of Perrin v. Morgan (supra), the House of Lords decided that the word money has several ordinary meetings, and did not have a single strict and primary meaning and in fact, had one or more popular or secondary meetings.

If a word or phrase has only one ordinary meaning and no special meaning, the ordinary meaning rule raises a presumption that the word or phrase bears that ordinary meaning. This presumption may be rebutted in two ways.

(i) The Dictionary Principle

This is another application of the principle that a Will is to be read as a whole. It is called such because the testator applied his own Adictionary.@ If it can be shown that in light of the surrounding circumstances that the testator used that word or phrase in a different sense from its ordinary meaning, then the word or phrase is to be construed in that different sense. The testator is free to use words to meet whatever he wishes, if he makes the sense in which he is using them clear in his Will.

(ii) Secondary Meaning Makes Sense

If the ordinary meaning does not makes sense when a Will is read in the light of the surrounding circumstances in which it was made, and a word or phrase has a secondary meaning that does makes sense, the word or phrase is to be given that secondary meaning. Under this rule the word or phrase must be capable of bearing the secondary meaning to be put on it; the surrounding circumstances cannot make “black” mean “white.

f) Presumption that Technical Words Are to Be Given their Technical Meaning

This rule often applies to any word or expression that has a recognized meaning as a “term of art” used by lawyers and Notaries in drafting. The court then decides whether a word or expression has a technical legal meaning and, if so, what that meaning is. This presumption can also be rebutted by the application of the aforesaid dictionary principle and secondary meaning “makes sense” rules.

g) The Entire Will Is to Be Read In Context

The intention of the testator is to be collected from the Will as a whole, read in its context. Particular words and phrases are not to be read in isolation from the entire context.

h) Presumption Against Intestacy

If a Will is fairly capable of two interpretations, one resulting in some or all of the property being incompletely disposed of and the other completely disposing of all of the testator’s property, it is presumed that the testator intended to dispose of his or her entire estate, and did not intend to die intestate in respect of the whole or any part of the estate. The presumption is especially strong if the testator has purported to dispose of all of his or her property.

The presumption against intestacy is often invoked in the “money” cases where the testator leaves “all the rest of my money” to a named person. Unless the word money is construed to mean “estate” the testator would usually die partially intestate. The courts will often so construe a word to prevent an intestacy.

i) Presumption of Rationality

A testator is entitled to be capricious in the disposition of his or her property and effect will be given to his or her intention so far as the law allows, if it is clearly expressed. It is presumed that the testator did not intend capricious, arbitrary, unjust or irrational consequences to flow from his or her dispositions. This presumption is frequently relied on in finding an error or omission that the court is willing to correct.

j) Presumption of Legality

If a Will is ambiguous and one possible interpretation of the Will appears to offend against the rule of law, while another possible construction that the Will reasonably bears does not, the testator’s intentions will be presumed to accord with the law.

k) Presumption Against Disinheritance

As a general rule, if the words of the Will are ambiguous, the court will prefer a construction that will benefit the testator’s heirs or immediate next of kin over one that favours more distant relatives or nonrelatives.

l) General Versus Particular Intention

If a testator expresses both a general and a particular intention with respect to a certain gift,, and the two are inconsistent, or the particular intention cannot be given effect to because of a rule of law, the court will give effect to the paramount general intention by disregarding, modifying, or restricting the particular intention. A frequent application of this principle that the particular intention yields to the general if the two are inconsistent, arises when the testator first disposes of an apparently absolute gift, followed by a gift over of what remains. If the two provisions cannot be reconciled, the court has then to give such effect to the wishes of the testator as is legally possible, by ascertaining which part of the testamentary intention predominates and by giving effect to it, rejecting the subordinate intention as being repugnant to the dominant intention.

m) Restriction of An Absolute Gift

In plain English, the testator cannot give absolutely, then in the next breath, take away from the absolute gift.

The Supreme Court of Canada in Blackburn v. McCallum (1903) 33 S.C.R. 65 stated at p. 92:

“when property is given absolutely a condition cannot be annexed to the gift inconsistent with its absolute character Y .”

9. THE POWER OF THE COURTS TO RECTIFY A WILL

Mr. Justice Burnyeat, in Brand vs. Adams 1998 CanRepBC 186, reviewed the jurisdiction of the Court to rectify an improperly drawn Will. He concluded that the Court DOES have the jurisdiction to strikeout words inserted by mistake, but that the Court=s jurisdiction DOES NOT extend to the power to add or substitute words in any circumstances. The following passage is cited from that decision.

A The Supreme Court may sit as either a Court of Probate or a Court of Construction. When it sits as a Court of Probate, it has jurisdiction to grant probate. Once probate of a Will has been granted, the Court sits as a Court of Construction and has jurisdiction to interpret the Will.

“In the exercise of the Probate jurisdiction, the Court certifies that the Will is valid and that the personal representative named in the Grant is entitled to administer the Estate. The Court also has a limited power, confined to deleting words, to rectify the wording of a Will to accord with what it determines to have in fact been the testator’s will.

“In the exercise of the construction jurisdiction [as opposed to the Supreme Court sitting as a Court of Probate], the Court interprets or construes the contents of the testamentary documents that have been approved by the Court in the exercise of its probate jurisdiction. The Court of Construction can only interpret the words that validly constitute the Will, as determined by the Court of Probate. If the Will was admitted to probate without any application for rectification, then the words that validly constitute the Will are those contained in the original document. If a rectification application was brought, the words that validly constitute the Will are those that resulted from the court’s rectification prior to the grant of probate. The Court [of Probate] cannot insert missing words and must be satisfied that the Testator did not “know and approve” the use of the words struck out. The equitable doctrine of rectification of written documents does not generally apply to Wills. The courts have construed the Wills Act so that there is no jurisdiction to add words to a Will, and only limited jurisdiction to delete or ignore words. If words have been omitted in error from the Will, and, because the court has no jurisdiction to add words, the Will is admitted into probate without rectification, a construction application can subsequently be brought to determine the meaning of the Will in the form in which probate was granted.

Feeney, The Canadian Law of Wills (2nd Edition), 1982, Vol. I:

“The jurisdiction of the Court of Probate to correct mistakes in a Will is very limited; it is confined “to striking out words inserted by mistake without the approval of the Testator. It does not extend to adding or substituting words in any circumstances. There is simply no jurisdiction to rectify a Will. (At pp.39-40)@

PART EIGHT

CLASS GIFTS

Problems can arise in the interpretation of Wills as to whether or not the testator intended to benefit a class of beneficiaries as opposed to certain named individuals. If a gift to an individual fails, then as a general rule the gift lapses and devolves on an intestacy. If a gift to a member of a group of persons or a class fails, then that gift does not lapse but is shared by the remaining members of the class who survive the testator.

In April 2000, I was counsel on a Will’s interpretation application called Milthorp v. Milthorp. The testator left the residue of the estate to her two natural children and named them, as well as her husband’s four children, and named them. One of the husband’s children predeceased his father, and the question arose as to whether that child’s interest lapsed and went by way of an intestacy, or was it a class gift, and thus went to the surviving children equally. Madam Justice Smith reviewed the law and concluded that it was not a class gift.

The following are some excerpts from that decision that define a class gift.

In Kingsbury v. Walters (1901), A.C. 187, 70 LT Ch 546, Lord MacNaughten

set out the test for class gifts:

“When there is a gift to a number of persons who are united or connected by some common tie, and you can see that the testator was looking to the body as a whole rather than to the members constituting the body as individuals, and also you can see that he intended that if one or more of that body died in his lifetime the survivors should take the gift between them, there is nothing to prevent your giving effect to the wishes of the testator.”

The definition of a class gift in Halsbury, 2nd edition, was cited with approval by the Ontario Supreme Court in Re Brush, [1943] 1 D.L.R. 74 at paragraph 25:

“Prima facie a class gift is a gift to a class of persons included or comprehended under some general description and bearing a certain relation to the testator or another person. Thus, where a testator divides his residue into as many equal shares as he shall have children surviving him, or predeceasing him leaving issue, and gives a share to or in trust for each such child, the gift is to a class.”

At page 365 of Re Brush, the court referred to the decision of Bolton v. Bailey (1879), 26 Gr. 361, in which Proudfoot V.C. quoted with approval Jarman’s definition of a class gift:

“… a gift to a class as a gift of an aggregate sum to a body of persons, uncertain in number at the time of the gift, to be ascertained at a future time, and who are all to take equally, the share of each being dependent for its amount upon the ultimate number of persons.”

Halsbury goes on to say, at pp. 144-5:

“Gifts to persons described only by relationship are sometimes construed as class gifts, and sometimes as gifts to individuals. A gift may be nonetheless a gift to a class because some of the members are referred to by name, or because a person … is excluded by name … . On the other hand, a gift to an individual and the children of another individual is not regarded as a class gift, unless there is something in the context to show that the testator intended to form a class.”

At p. 145 the author of Halsbury states:

“… gifts to several persons designated by name or number or by reference are not class gifts, and are liable to lapse.”

A somewhat similar statement is made in Theobald on Wills, 9th edition., p. 670:

“A gift ‘to the five daughters of A’ or to ‘my nine children,’ or to ‘my said three sisters,’ is not a gift to a class.@

When Does the Class Close?

In Bullock v. Downes (1860) 9 H.L.C.1, it was held that prima facie the next of kin are to be ascertained at the death of the testator, but, that if there is a sufficient indication to that effect in the words of the Will, the time for ascertaining the class may be the time fixed by the Will as the period of distribution.

PART NINE

CONDITIONAL GIFTS

If words are included in a Will that show that a testator intended a gift to be ineffective unless some specific event occurs or some state of affairs continues, then the gift is subject to a condition of which there are two kinds: condition precedent and condition subsequent.

Where the condition must occur for the gift to take effect, then the gift is subject to a condition precedent. If the language shows that the gift is to take effect but terminate on the happening of the condition, then it is a condition subsequent.

It is a question of construction in every case whether a reference to an event indicates a condition upon which the gift depends, or is merely a statement of the testator=s reason for making the gift.

In McKeen Estate v. McKeen Estate (1993) N.B.J. 69, it was held that the crucial distinction is whether the happening of the condition is an event that caused the gift to spring into being, and thus vest, or whether the happening signifies that an existing (already vested) interest is to come to an end.

If a condition precedent is considered to be too vague or too uncertain to be enforceable, then the gift will fail entirely. On the other hand, a vague or uncertain gift will be perfected if the condition subsequent is void.

A condition precedent must be expressed with sufficient clarity for a court to determine that any failure to comply with it should disentitle the beneficiary completely. A distinction should be drawn that it is still possible to postpone an interest to a future time, and that does not constitute a condition precedent. For example, ATo Mr. A, two years after my death@ is not a contingent gift.

An example of a condition precedent can be found in the decision Melnik v. Sawycky (1978) 1 W.W.R. 107, where the testator left all his estate to his niece who was living in the U.S.S.R., AProvided that the said niece come to Canada and make her permanent home in Canada.@

The Saskatchewan Court of Appeal held that the gift was a condition precedent, and that she must come to Canada to live as that was a condition of the acquisition of the gift and not merely a condition (subsequent) of its retention.

Similarly, in Robertson v. Thomas and Roberts (unreported B.C.C.A Victoria Registry VO1078, November 29,1990), the Court determined that a bequest of a house to a beneficiary Aif she wishes to live in it@ was a condition precedent to the beneficiary receiving the gift, and that she must elect to do so before the gift vested to her.

10. REPUGNANT CONDITIONS

Testators sometimes attempt to effect a restraint on enjoyment of a gift by attaching a condition to the gift in an attempt to control the conduct of the donee with regard to it. The law will usually give effect to this, so long as the condition precedent is not impossible to fulfill, is expressed with sufficient clarity, and does not violate a rule of public policy.

Thus it has been upheld that if a testator gives a gift on the condition that the donee ensure that the testator is not put into an old person=s home, and it is proved that the donee allowed the testator to be put into such a home, then the gift failed. Re Archibald (1933) N.L.47.

As previously discussed, a restraint on alienation of a gift absolute will not be allowed. Thus a condition on a gift of real property that it not be sold Aas long as grass grows and water runs@ was found to be void. McEachern v. New Brunswick Housing Corp. (1990) 117 N.B.R. (2d) 14

CONDITION POSTPONING ENJOYMENT BEYOND THE AGE OF MAJORITY (RULE IN SAUNDERS v. VAUTIER)

Feeney, The Canadian Law of Wills (4th edition), states at 16.7 as follows:

A The most usual type of condition that is void as being repugnant to the nature of an absolute gift is a gift of the capital of a fund to a person subject to a condition that the fund is not to be paid to the person until that person attains some age greater that the age of majority. Usually a condition of this kind can only be valid if the income from the fund is given to another person until such time as the beneficiary attains a specified age. Unless there is a gift over of the intermediate income, or the Will so clearly takes the income from the donee that a court will hold that there is an intestacy as to the income until the specified age is reached, the donees are entitled to call for the whole fund, provided only that they are sui juris [they are not under a legal disability to act for themselves].@

In Re Squire, (1962) O.R.863, the Ontario court found as follows.

Facts: A testator left certain real estate to two of his grandsons to be held in trust until they reached the age of 30 years. The trustee was to invest the income for their benefit, and it had a discretion to advance sums for their education.

Held: The properties became vested in the two grandsons and they were entitled to receive them at the age of 21. (The age of majority in Ontario at that time.) A devise had to be interpreted as vesting unless some condition precedent expressed in the bequest prevented the vesting. Testator’s intention in respect of vesting could be inferred from the fact that the two grandsons were entitled to the interim income and there was no gift over if they failed to reach the age of 30 years, the property was separated from the rest of the estate, and they were excluded from sharing in the residue.

11. IMPOSSIBLE CONDITIONS

An impossible condition precedent to fulfill with respect to land, will render the gift void. However, where the gift is one of personalty [moveable property or chattels], even though the condition is clearly a condition precedent, yet impossible to fulfill, then the gift may be allowed to stand.

12. CONDITIONS AGAINST PUBLIC POLICY

There are many conditions that in the interest of the public, or the Crown, that may be said to be against public policy. The conditions may vary over time, but generally speaking, conditions that offend the law, or are an unreasonable restraints on marriage, or a condition that attempts to avoid the Wills Variation Act, or is racially offensive, may be void. Some conditions that were formerly held to be void, may now be allowed, and vice versa. This is simply because of changes of public opinion over time, which the Courts attempt to reflect.

13. CONCLUSION

AA gift is not a kiss in the dark. Unlike the memory of a kiss which fades in time, the giving of a gift has lasting consequences.@

(Per Justice Greer in Schilthuis v. Arnold, (1941) O.J. 2212 at page 2 of 25.)

Much can be done to protect the document, the executor, the beneficiaries, and YOURSELF from litigation. The more knowledge and understanding the draftsperson has, then the more likely it will be that Apreventative@ measures can be taken to increase the probability that a successful estate administration will be achieved without the involvement of litigation. The draftsperson must not only prepare the Will in a manner that properly sets out the intentions of the testator, but also, the preparation must also serve to provide maximum protection to the integrity of the Will should it be attacked, as well as to avoid liability for negligence on the part of the draftsperson.

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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