Interpreting the Ambiguous Will

Interpreting the Ambiguous Will - Disinherited

The increasing occurrence of laymen doing their own will, combined with the curative effects of sections 58 and 59 of WESA, will invariably be leading towards an increase in court applications to interpret the meaning of an ambiguous will or portion thereof.

There is a substantial body of law relating to the interpretation of unclear wills that was largely effected by wills that had been prepared by notaries or lawyers.

The advent of such cases as Re Young Estate 2015 BCSC 182 where the court found that three documents with different dates over a period of three years stapled together, were allowed to be collectively read as the last valid will of the deceased.

In the Australian decision Nicol v Nichol 2017 QSC 220, a five line cryptic unsent text message on the phone of the deceased who had committed suicide was found to be a valid will. The message was extremely informal and somewhat vague but did refer to it as being “my will”.

There have been examples of diary entries and unsigned and undated documents purporting to be a will that have been submitted to the court, under the curative provisions of WESA, some of which have succeeded to be found to be reliable and permanent evidence of the deceased testamentary intention, while others have not.

Suffice to say however, that the wills that have been found to be valid and admitted into probate are generally speaking very vague and often in need of interpretation.

General principles of will interpretation

In Killam v Killam 2017 BCSC 175 at paragraph 60 the courts noted that the starting point for any analysis is the actual language of the will. The court will then look to the surrounding circumstances existing at the time the testator made the will.

The BC Court of Appeal has referred to two different approaches to the interpretation of wills, one being the four corners approach and the other the armchair approach.

The four corners approach to the interpretation of wills 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 the 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 on the other hand, requires the court at the outset to place itself in the position of the testator at the time he or she wrote the will and to consider the surrounding circumstances and context in order to ascertain the subjective intentions of the testator.

The armchair approach was used by the Court of Appeal in Smith v . Smith estate 2010 BCCA 106 were at paragraph 30. The court stated the guiding principles that to interpret a will, the court must first look to its language. Only if the court cannot ascertain the intention of the testator should it look beyond the will itself, in which case the armchair rule applies. This principle was adopted from Feeney: The Canadian law of wills.

Accordingly, the armchair approach is to be used only if the intention of the testator cannot be ascertained from the will itself

A number of decisions have expanded the armchair rule in British Columbia, such as in Thiemer Estate v Schlapapner 2012 BCSC 629 , where at paragraph 45. It was stated 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 intension is to be gathered from the will as a whole and not solely from those provisions which have given rise to the controversy (Perin v Morgan (1943) A.C. 399 at 406 (H.L.)

Accordingly, BC courts have endorsed both approaches in different cases

The Killam decision seems to clarify that the armchair approach does not come into play unless the testator’s intention cannot be ascertained from the language of the will alone. In Killam, however, the court concluded that some combination of the two approaches be used stating that no matter which approach is favored, the starting point for any analysis, it is the language of the will itself.

Assessing summary of the principles to be applied in interpreting the will were followed in Vopicka v Volpicka Estate 2017 BCSC 2197, where the court quoted a summary of the principles to be applied as set out in the Ontario Court of Appeal decision of Dice v. Dice 2012 ONCA 468 at paragraphs 36 – 38:

36. “The golden rule in interpreting wills is to give effect to the testator’s intention as ascertained from the language that was used. Underlying this approach is an attempt to ascertain the testator’s intention, having regard to the will as a whole;

37. Where the testator’s intention cannot be ascertained from the plain meaning of the language that was used, the court may consider the surrounding circumstances known to the testator when he or she made his will – the so-called “armchair rule”;

38. Under the “armchair rule”, the court sits in the place of the testator, assumes the same knowledge the testator had of the extent of his assets, the size and makeup of his family, and his relationship to its members, as far as these things can be ascertained from the evidence presented.”


Natural and ordinary meaning

The Killam decision followed British Columbia Official Administrator v. Joseph (1999) BCJ 2340 that reiterated the concept both that every word is to be given its natural and ordinary meaning, and that if technical words are used, they are to be construed in their technical sense unless it is evident that the testator intended otherwise.

A body of case law has developed for common words such as the meaning of “monies” and for technical words such as “issue”.

The court will in its interpretation of the will look to the ordinary meaning of words as per a reputable dictionary .

For example in Re Ali Estate 2014 BCSC 340 the court was asked to interpret the words “ my interest in the company”.

The court referred to two Canadian dictionaries which defined interest as:

1) A financial stake;

2) a legal concern, title or right;

3) Something which a person has in a thing when that person has advantages, duties, liabilities, losses or rights connected to it, whether ascertained or potential, present or future.”

The Joseph decision for example provided a succinct description of the technical words “per capita” and “per stirpes” at paragraph 10.

Re Stark (1969) 2 O.R. 881 quoted Halsbury, 3rd edition at paragraph 1499 that:

“A word ought not to be disregarded if it can be given some meaning which is not contrary to the intention of the testator plainly expresses in other parts of the will and it is not to be assumed that the testator has used additional words without some additional purpose or without any purpose whatsoever.”


Precatory words

It is important for will makers to be aware that words that are not mandatory, and are merely an indication of a wish, request , desire, expectation and the like are referred to in law as precatory language which is not legally binding upon the executor/trustee.

For example, in the Killam decision. The deceased stated “ it is my desire, however, I do not direct, that said share shall be used for the health, support and maintenance of—, for as long as he should live or as long as said funds are available for such purpose.
The court was asked in that decision whether a trust had been created. The court approached the matter on the basis of construction- did the deceased intend to create a trust or not?.

The court in Killam found that the words, “desire and not direct”, were precatory and not mandatory in nature, but looked at the remainder of the will, where in three instances, the words “ I direct “ are used, and the instruction is clearly mandatory. By using the wording I do not direct, the court concluded that the testator’s intention was that the provision not be mandatory in nature.

Accordingly, the court in the Killam decision concluded that the words” it is my desire, however, I do not direct” only created a moral and not a legal duty on the executor to use the funds for the health, support and maintenance of the beneficiary.



There is a great deal of judicial authorities compiled over many years relating to the proper interpretation of an ambiguous will. The court will do its best to determine the intention of the will maker when interpreting uncertain language used in the will. The courts will do its best to make sense of the will and will interpret it in a way that renders certain phrases or words meaningful and not redundant or unnecessary.

It is likely that there will be an increase in court applications to determine ambiguous wills that have been prepared by laypeople who have informally prepared their will in documents ranging from scrap notes, diary entries, suicide notes, fill in the blank forms, unsent text messages and just about any other document that the court finds to conclusively, and permanently indicate to be gthe last testamentary wishes of a deceased will maker.

Will Interpretation Law

Will Interpretation Law

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 vJohnson, 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.