Dunn v TD Canada Trust 2016 BCSC 270 was a Rule 9-7 application to determine the words directing the trustee to retain in the form in which they are at the time of my death all investments in bonds and stocks which they had done since 1957.
The question that came after almost 60 years was were the trustees required to keep the bonds and stocks in specie for the lifetimes of the daughters, or did the will give the trustees the power to retain or sell as deemed advisable in the trustees absolute discretion.
After a lengthy analysis of the law the court concluded that the trustee was required to retain the testators bonds and stocks in specie for the lifetime of the daughters , subject to encroachment if the balance of the capital of the estate was otherwise exhausted.
The Law
[18] As noted, the parties agree as to the rules of construction to be employed in determining the intention of the testator. Generally, it is to be a staged approach where a second or subsequent step or method is only employed where the previous has not allowed the court to determine the testator’s intention.
[19] The first approach is to look at the ordinary meaning of the words used within the four corners of the will. Counsel referred to several cases that have articulated this in slightly different ways with each articulation providing some assistance and clarity. Counsels’ presentation of the law, evidence and argument was concise and effective.
[20] The defendants referenced TLC The Land Conservancy of British Columbia v. The University of British Columbia, 2014 BCCA 473 [TLC], as well as others in these paragraphs from the defendants’ written argument:
44. In TLC The Land Conservancy of British Columbia v. The University of British Columbia, 2014 BCCA 473 the Court stated:
[45] The parties are also agreed as to the general principles governing the interpretation of wills. The basic principle was articulated by the Supreme Court of Canada in National Trust Co. Ltd. v. Fleury, 1965 CanLI118 (SCC), [1965] S.C.R. 817 at 829:
In the construction of wills, the primary purpose is to determine the intention of the testator and it is only when such intention cannot be arrived at with reasonable certainty by giving the natural and ordinary meaning to the words which he has used that resort is to be had to the rules of construction which have been developed by the Courts in the interpretation of other wills.
[46] Other relevant principles include the following statements from James MacKenzie, Feeney’s Canadian Law of Wills, loose-leaf, 4th ed. (Markham, Ont.: LexisNexis, 2000):
- §10.43 … the most influential rule of construction is that the court may construe the words used by the testator in their ordinary sense…
- §10.60 The testator’s intention is to be gathered from a consideration of the will as a whole and not solely from the swords used, say, in an unclear portion of the will. The ordinary meaning rule and other rules of construction are entirely subservient to the content of the will. This idea is often expressed by saying that the testator’s intention is to be ascertained, first of all, from the four corners of the will…
- §10.61 It is reasonable to presume that the testator’s intention was that effect be given to every word of his or her will..[footnotes omitted]
[47] It is appropriate to consider surrounding facts and circumstances only if the language of the will is ambiguous: Feeney’s Canadian Law of Wills at §10.51.
45. There are a number of principles that the court utilizes in determining the testator’s intention from the plain meaning of the words used within the four corners of the will:
(a) A cardinal principle of interpretation of a will is that each clause must be construed in the context of the will as a whole. It is incorrect to interpret a single clause in a will without reference to the will as a whole.
TLC, supra, at para. 46; Feeney’s Canadian Law of Wills, loose-leaf, 4th ed. (Markham Ont: Lexis Nexis, 2000) at §10.60
(b) The court should interpret the will in a way which gives effect to all the words used in a will, and reject interpretations that would render certain words or phrases inoperable.
Stark, Re, [1969] 2 O.R. 881, 7 D.L.R. (3d) 313 (C.A.)
(c) In interpreting a will, the Court should not add or insert words unless it is “patently obvious” that there has been an inaccurate expression by the testator of his or her intention, and the words that should be read in are clearly what the testator had in mind.
Laws v. Dobson Estate, 2006 BCSC 1519 at para. 56 Brooks Estate, Re, 2011 BCSC 1606
(d) Where a testator repeats a word or phrase, it should be presumed that the testator intended to express the same idea.
Middlebro v. Ryan (1924), [1925] 1 D.L.R. 589, [1925] S.C.R. 10
(e) Where a testator uses different words or phrases, it should be presumed that the testator intended to express difference ideas.
Lanterman Estate v. Lanterman (19[9]7), 18 E.T.R. (2d) 254, 202 A.R. 285 (AB Surr. Ct.)
[21] The applicants’ summary of the law on this point references some different authorities as follows:
27. It is well accepted that the primary purpose in the interpretation of a will is to determine the intention of the testator. This ought to be accomplished, where possible, based solely on the ordinary meaning of the words used within the four
corners of the Will by reading it as a whole. If the testator’s intention can be determined in the context of the Will as a whole, it is unnecessary to look any further.
Smith v. Smith Estate (Trustee of), 2008 BCSC 1189 (“Smith BCSC”)
at paras. 30-31;
Smith v. Smith Estate (Trustee of) [2010] BCJ No. 370 (“Smith BCCA”)
at paras. 18 & 28
Feeney’s Canadian Law of Wills (4th edition) (“Feeney’s”) at §10.60
28. The Supreme Court of Canada has commented that ordinary meaning often refers to a reader’s first impression meaning:
Although the weight to be given to the ordinary meaning of words varies enormously depending on their context, in the instant case, a textual interpretation supports a comprehensive analysis based on the purpose of the Act. Most often, “ordinary meaning” refers “to the reader’s first impression meaning, the understanding that spontaneously emerges when words are read in their immediate context” (R. Sullivan, Sullivan and Driedger on the Construction of Statutes (4th ed. 2002), at p. 21; Marche v. Halifax Insurance Co., [2005] 1 S.C.R. 47, 2005 SCC 6, at para. 59). In Canadian Pacific Air Lines Ltd. v. Canadian Air Line Pilots Assn., [1993] 3 S.C.R. 724, at p. 735, Gonthier J. spoke of the “natural meaning which appears when the provision is simply read through”.
Pharmascience Inc. v. Binet, 2006 SCC 48 [at para. 30]
29. When interpreting a will, the court should consider the Will as a whole to garner the intention of the testator, rather than particular phrases in isolation.
Smith BCCA supra, at para. 30 Henderson Estate v. Honeyboum [2003] B.C.J. No. 783 at paras. 11 and 25
30. Where a clause is ambiguous and capable of two reasonable interpretations, one in harmony with the balance of the will and one at variance to it, the former is to be preferred.
Feeney’s at §10.62 Re Galt, Royal Trust Co. v. Martin (1957), 12 DLR (2d) 140 (BCCA) (“Galt”) at [142]
31. The law is that it is reasonable to presume that the Testator’s intention was that effect be given to every word of his or her will and that none of the words be rejected. This principle is outlined in Smith BCSC as follows:
The court should make every effort to reconcile two apparently conflicting provisions of a will, rather than to absolutely ignore one or the other of them, or call either or both of them void for uncertainty.
Feeney’s at §10.61 Smith BCSC at para. 34
32. Where in a will there is an omission that is plain on its face or an ambiguity, the Court may apply common sense to make a change or addition if the testator’s intention is clear.
Laws v. Dobson Estate, [2006] BCJ No. 2700 at para. [55]
[22] Where the intention of the testator cannot be determined from the language used in the will, resort may be had to the so-called “armchair rule” of construction, which has been described in Smith v. Smith Estate, 2010 BCCA 106 at para. 18, citing Re Burke (1959), 20 D.L.R. (2d) 396 at 398, [1960] O.R. 26 (Ont. C.A.):
Each Judge must endeavour to place himself in the position of the testator at the time when the last will and testament was made. He should concentrate his thoughts on the circumstances which then existed and which might reasonably be expected to influence the testator in the disposition of his property. He must give due weight to those circumstances in so far as they bear on the intention of the testator. He should then study the whole contents of the will and, after full consideration of all the provisions and language used therein, try to find what intention was in the mind of the testator. When an opinion has been formed as to that intention, the Court should strive to give effect to it and should do so unless there is some rule or principle of law that prohibits it from doing so.
[23] It is also well-established that in an application of the armchair rule, direct extrinsic evidence of intent is generally not admissible: Thiemer Estate, 2012 BCSC 629 at para. 50; Aii Estate (Re), 2014 BCSC 340 at paras. 18-19; and Souch v. Johnson, 2014 BCSC 1889 at para. 31.
[24] Both parties in this application maintain that their respective positions on the proper interpretation of this will are established by the words alone and that I need not reference or rely on any other rule of construction, including the armchair rule to interpret this will.
[25] If, after an examination of the language used within the four corners of the will and, if necessary, aided by the application of the armchair rule, the intention of the testator still has not been determined, other rules of construction may be employed. As will be seen from the analysis which follows, I do not find it necessary to resort to additional rules of construction; therefore, I will not address them further.
