“Wishes” and “Requests” Are Not Legally Binding In Will Construction

Will Construction

Rudaczyk Estate v Ukrainian Evangelical Baptist Assn. 1989 ( 34) ETR 231 involved a court application to interpret and construct a will with a memorandum executed the same time as the will and in accordance with the requirements for execution of the will. The memorandum was not referred to in the will, and it stated” It IS MY WISH that you set aside one quarter of the residue of my estate for the benefit of my niece in the Ukraine–and to use this sum for the purchase and mailing of food, clothing and other articles as my said niece, may request and you in your absolute discretion shall think fit”. the Court held that the use of words like “wish” or Desire are precatory and not legally binding, and did not reduce the gift to the residuary beneficiaries to three quarters of the residue.In Johnson v. Farney (1913), 29 O.L.R. 223,14 D.L.R. 134, an appeal from Chancellor
Boyd, Meredith CJ.O. counseled against making expression of a wish or request of a testator
mandatory so as to create a trust. He observed, at 135-136, D.L.R.:

What the Court has to do is to find out what, upon the true construction, was the meaning of the testator, rather than to lay hold of certain words which in other wills have been held to create a trust, although on the will before them it is satisfied that that was not the intention: and, in construing the will in question, in the language of Cotton, L.J., In re Adams and Kensington Vestry (1884), 27 Ch. D. 394,410, ‘what we have to look at is the whole of the will… and if the confidence is that the widow will do what is right as regards the disposal of the property,’ we ‘cannot say that that is, on the true construction of the will, a trust imposed upon her.’

The Court ought to be very careful not to make words mandatory which are a mere indication of a wish or a request. The whole will must be looked at, and the Court must come to a conclusion as best it can in construing, not one particular word, but the will as a whole, as to whether the alleged beneficiary is or is not a mere trustee or whether he takes beneficially with a mere super-added expression of a desire or a wish that he will do something in favour of a particular object, but without imposing any legal obligation:

per the Master of the Rolls in In re Atkinson, 80 L.J. Ch. 370, at p. 373.

Reference may also be made to the statement by Fletcher Moulton, L.J., in the same case (p. 374), of the principle on which the Courts act in determining whether or not a precatory trust is created, and to the statement of Buckley, L.J. (pp. 375-6), of the general principles to be applied in such cases.

The Court there held, as had Chancellor Boyd, that no trust had been created. See also, Keyes v. Grant, [1928] 3 D.L.R. 558 at 559,40 B.C.R. 19, [1928] 2 W.W.R. 295 per MacDonald C.J.A., 559 per Martin J.A., 560 per Galliher J.A. and 561 per MacDonald J.A. (B.C. C.A.).; and, Re Lasby; Can. Permanent Trust Co. v. Lasby, 42 Sask. R. 73 at 75, [1985] 6 W.W.R. 665 (Q.B.).

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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