Who Are Your “Nieces & Nephews”?

nieces and nephewsWill Construction re Nieces and Nephews

Re Holmes Estate 2007 BCSC 51,  involved a childless testator who was predeceased by his wife .

His will provided in part that residue of his estate be “paid and transferred over to all my nieces and nephews”

He had eleven nieces and nephews who were chil­dren of his siblings.

The testator’s late wile had eighteen nieces and nephews who were children of her siblings. The executor applied to Court for construction of the impugned pro­vision for determination as to whether phrase “all my nieces and nephews” included

the children of his late wife’s siblings.

On consideration of surrounding circumstances,the Court held that the testator intended lo benefit both children of his siblings, and children of his late wife’s siblings.

The evidence included:

In his four prior wills, testator benefited both families

Finding that testator intended to benefit both sides of family was evident in testator’s ongoing
relationship with various members of late wife’s family.

The alleged ambiguity in the will was brought to testator’s attention in his lifetime; however, the  testator did not change his
will .

The court held it was inconceivable that the testator would not have changed will if he did not intend to benefit late wife’s side of family.

The primary objective of the court when interpreting a will, is to determine the testator’s intention.

The will must be considered in its entirety.

If there is no ambiguity on the face of the will then it should be interpreted according to the ordinary meaning attributed to the words used.

Only if there is an ambiguity should the court resort to evidence of surrounding circumstances.

The court relied on the leading case of Perrin v  Morgan (1943) A.C.399 H. L.

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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