The Presumption Against An Intestacy

IntestateThere is a strong presumption against an intestacy in the construction/interpretation  of a  will that a testator did not go to the trouble and expense of preparing a will to only lead to an intestacy- the testator wanted a testacy.

 

This presumption however will likely become less and less in effect as a result of the WESA changes in effect on April 1, 2014.

This was discussed inter alia in Re Kellogg Estate 2013 BCSC 2292

The Law

80) There is a strong presumption against intestacy: see e.g. Howell v. Howell Estate, 1999 BCCA 371. This presumption was discussed by Dorgan J. in Young v. Abercrombie, 2008 BCSC 389, at paras. 16, 18 and 19, as follows:

[16] Further, in the construction of wills, there is a strong presumption against intestacy. This often-cited principle was articulated by Lord Esher, M.R. in Re Harrison Estate (1885), 30 Ch.D. 290 at 393-4, as follows:

There is one rule of construction, which to my mind is a golden rule, viz., that when a testator has executed a will in solemn form you must assume that he did not intend to make it a solemn farce – that he did not intend to die intestate when he has gone through the form of making a will. You ought, if possible, to read the will so as to lead to a testacy, not an intestacy. This is a golden rule.

In Baldissera v. Baldassi (1997), 18 E.T.R. (2d) 128 (B.C.S.C.) at para. 10, Edwards J., citing The Canadian Law of Wills, vol. 2, confirmed that:

There is a presumption against intestacy and the court will prefer an interpretation of the will which avoids an intestacy

And further, at para. 11, Edwards J. held:

The court on reading the will as a whole may conclude that the testator clearly intended to dispose of his entire estate. Once such an intention is clear the court will construe the will so as to give effect to the will in preference to a construction which will result in a partial or total intestacy.

[19] A similar conclusion is found in Jankowski v. Pelek Estate, [1996] 2 W.W.R. 457, 131 D.L.R. (4th) 717 (Man. C.A.), where Helper J.A. at para. 76 stated, “[i]f the will is capable of two constructions, one which disposes of the whole estate and the other which leaves part of the estate undisposed of, the court will prefer the former.”

 

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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