Trevor Todd and Jackson Todd have over 60 years combined experience in resolving estate disputes, including the interpretation of trust documents.
In Re RM Platererr Education trust 2025 BCSC 1204 grandmother established a trust for the education of her grandchildren that was ambigouos and required the assistance of the court with directions on it’s interpretation.
THE LAW
The Court has the jurisdiction to assist in this matter pursuant to section 86 of the Trustee Act, R.S.B.C. 1996 c. 464, and Rule 2-1(c) and (d) of the Supreme Court Civil Rules, BC Reg 168/2009, Part 2: British Columbia v. Friends of Beacon Hill Park, 2023 BCCA 83; Toigo Estate (Re), 2018 BCSC 936.
[28] In The Bank of Nova Scotia Trust Company (Trustee) v. Quinn, 2019 BCSC 439, Justice Voith (as he then was) set out the applicable analysis with regard to interpreting a trust document:
[21] The Court, in Re Ali Estate, explained the role of a court of construction:
23. … the court is concerned with ascertaining the meaning of the testamentary documents that have been approved by the court in the exercise of its probate jurisdiction. It is axiomatic that the court must interpret or construe a will in the form in which it has been admitted to probate.
[22] Additionally the Court, in Re Ali Estate, said:
24. … the scope of admissible evidence is generally more constrained in a construction hearing. In that instance, a court may only consider the words of the will and if, applying the subjective approach, the evidence of the surrounding circumstances known to the testator at the time the will was made. Except in very restricted circumstances (such as equivocation), the court is not permitted to review direct evidence of the testator’s intentions on a construction application…
[23] Thus, sitting as a court of construction, a court’s primary task in interpreting a trust is to determine the actual intention of the settlor on the basis of the trust instrument as a whole. In Re Tyhurst Estate, [1932] S.C.R. 713, at 716, the Court said:
In construing a will the duty of the court is to ascertain the intention of the testator, which intention is to be collected from the whole will taken together. Every word is to be given its natural and ordinary meaning and, if technical words are used, they are to be construed in their technical sense, unless from a consideration of the whole will it is evident that the testator intended otherwise.
See also James MacKenzie, Feeney’s Canadian Law of Wills, 4th ed., (Toronto: LexisNexis, 2000) (loose-leaf updated May 2016) at §10.1 and 11.1.
[24] Rules of interpretation and construction are applied only if the intention of the testator cannot be determined on the plain meaning of the words of the trust: National Trust Co. Ltd. v. Fleury, [1965] S.C.R. 817 at 829; Feeney’s Canadian Law of Wills at §10.19.
[25] Uncertainty with respect to the settlor’s intent may result from ambiguity or mistake. An ambiguity arises when the meaning of a particular word or phrase is unclear. A mistake usually arises when there has been a mistaken inclusion of unintended words, a failure to include intended words, or a mistaken use of one word or expression in place of the one intended: BC Probate and Estate Administration Practice Manual (Vancouver: Continuing Legal Education Society of British Columbia, updated April 2018) at §9.36.
[26] In such circumstances, a court of construction can add, strike and amend words as necessary in order to give effect to a testator’s intentions where that intention is plain and clear. The court will also interpret any gaps in a will that were left by the court of probate: Re Moiny Estate, 2001 BCCA 100 at para. 19; Milwarde-Yates v. Sipila, 2009 BCSC 277 at para. 48.
[27] In Thiemer Estate v. Schlappner, 2012 BCSC 629 at paras. 45-47, Madam Justice Dardi distilled these various principles and said:
In construing a will, the objective of the court is to ascertain the intention of the testator as expressed in his or her will when it is read as a whole in light of any properly admissible extrinsic evidence… It is a cardinal principle of interpretation that the testator’s intention is to be gathered from the will as a whole and not solely from those provisions which have given rise to the controversy…
Another fundamental tenet affirmed by an established line of authorities is that the court is to ascertain the expressed intention of the testator – the meaning of the written words used in the particular case – as opposed to what the testator may have meant to do when he or she made the will.
Earlier lines of authority endorsed an objective approach to will interpretation. However, modern jurisprudence recognizes that a strict literal approach can defeat the intention of the testator, thereby leading to unjust results… The liberal interpretive approach finds its roots in the seminal decision of the House of Lords in Perrin.
[28] Justice Dardi went on, at para. 48 of Thiemer Estate, to explain that British Columbia courts favour a subjective approach when interpreting testamentary documents:
In keeping with contemporary judicial thinking, the courts of this province have favoured the subjective approach to interpreting wills, wherein the objective is to ascertain the actual meaning the testator ascribed to the words he or she used in the will. In determining the testator’s intention the courts have endorsed the analytical approach commonly described as the “armchair rule”. The rule requires that the court put itself in the position of the testator at the point in time when he or she made the will, and from that vantage point construe the language in the will in light of the surrounding facts and circumstances known to the testator.
[29] It is clear that the “armchair rule” applies to inter vivos trusts: see Wong Joint Partner Trust (Trustee of) v. Wong, 2010 BCSC 1331 at para. 7; Stewart v. Stewart, 2018 BCSC 556 at paras. 50-56.
[29] Similarly, in Killam v. Killam, 2018 BCCA 64 [Killam BCCA] the Court of Appeal affirmed the analytical approach adopted by Justice Blok on the interpretation of wills or other instruments. In his chambers decision, Killam v. Killam, 2017 BCSC 175 [Killam BCSC], Blok J. distinguished between the “four corners” approach and the “armchair” approach. In Killam BCCA, the Court of Appeal discussed this distinction as follows:
[50] In commencing the construction exercise, the judge noted that the parties referred to two approaches to the interpretation of wills, the “four corners” approach and the “armchair” approach respectively. He described the difference between the two approaches in the following manner:
[44] … The “four corners” approach to the interpretation of wills (or other instruments) means that the intention of the testator is to be taken from within the “four corners” of the document itself, at least in the first instance, and surrounding circumstances are not to be considered unless the intention of the testator cannot be ascertained from the language of the will alone. The “armchair” approach requires the court, at the outset, to place itself in the position of the testator at the time he or she wrote the will (that is, to sit in his or her “armchair”), and to consider the (then) surrounding circumstances and context in order to ascertain the subjective intentions of the testator.
[51] As I have said, the judge determined that, on reading the relevant authorities, he was unable to conclude which approach to employ. In outlining his approach to constructing the will the judge said:
[60] … No matter which approach is favoured, the starting point for any analysis is the language of the will and, in this case, the first codicil as well. I therefore begin with an analysis of the language used in the will and I will then look to the surrounding circumstances existing at the time the testator made the will.
[52] In my view, there is no error in the approach outlined by the judge. The ultimate question in constructing a testamentary document is to determine the testator’s intention, and, as the judge said, the appropriate “starting point” is the language of the will.
[30] In Killam BCSC, Blok J. also identified that the case authorities in British Columbia have articulated two different approaches with respect to the “armchair approach” that, in his view, were “not consistent”: at para. 47. Justice Blok described these two approaches as the “armchair approach” and the “expansive armchair approach”. He explained:
[47] …Some indicate that surrounding circumstances are not to be considered unless the testator’s intentions cannot be discerned from the will itself. Others indicate that surrounding circumstances are to be considered at the outset in articulating the proper approach to be used.
[31] Justice Blok observed that the British Columbia Court of Appeal had previously “endorsed both approaches in different cases” which had “[left] the issue in an unsatisfactory state of uncertainty”: Killam BCSC at para. 56. Unfortunately, on the appeal from Blok J.’s decision, the Court of Appeal declined to endorse one approach or the other, leaving the law in a continued state of uncertainty. Accordingly, Blok J. decided to employ a combination of the two approaches:
[60] In light of this legal uncertainty I conclude that some combination of the two approaches is called for here. No matter which approach is favoured, the starting point for any analysis is the language of the will and, in this case, the first codicil as well. I therefore begin with an analysis of the language used in the will and I will then look to the surrounding circumstances existing at the time the testator made the will.
[32] For the purposes of these reasons, I intend to proceed in a similar manner. I will apply the “four corners” approach as a starting point and then, if the intention of the settlor cannot be ascertained from the language of the Trust Deed alone, proceed to apply the “armchair approach”. I do not intend to apply the “expansive armchair approach” identified in Killam BCSC although, for reasons that will become clear below, I would have reached the same conclusion regardless of which approach is applied.
