Will in Contemplation of Marriage

Will in Contemplation of Marriage

Prior to the WESA legislation in BC prior to  March 31, 2014 a marriage revoked an existing  will unless the  will was made in contemplation of marriage.

The BC Appeal court in MacLean Estate v. Christiansen, 2010 BCCA 374dealt with the matter.

The BCCA examined a will using the word spouse, but not actually saying the will was made in contemplation of the marriage. The trial judge found that the marriage was revoked but the appeal court reversed that decision and held that the will was valid.

[1] The principal issue in this appeal is whether the will of Gordon William MacLean was revoked by his subsequent marriage to Karen Christiansen. The appellant trustee and executor, a solicitor, prepared the will with the knowledge that Mr. MacLean intended to marry Ms. Christiansen. Through inadvertence, he failed to include as a term of the will the customary declaration contemplated by s. 15(a) of the Wills Act, R.S.B.C. 1996, c. 489, that the will was made in contemplation of the marriage. Absent such a declaration, a will is revoked pursuant to s. 14(1 )(a) of the Wills Act.

[25] After a comprehensive analysis of the origin and purpose of the Saskatchewan equivalent to s. 15 of the Wills Act, the English Wills Act, 1837 (U.K.) 7 Will. 4 & 1 Vic, c. 26, and An Act to amend the Wills Act of Ontario, S.0.1897, c. 20, the court considered whether the statute required a “formal declaration” or statement of intention. After considering the modern approach to statutory interpretation described by Ruth Sullivan in Dreidger on the Construction of Statutes, 3d. ed. (Markham, Ont: Butterworths Canada Ltd., 1994) and the ordinary dictionary meaning of the word “declaration”, the court held at para. 26:

[26] Thus, on a plain reading of the section and giving the word its ordinary meaning, a declaration need not be a formal statement. In my opinion, the ordinary meaning of the word is that there be a written statement in the will referable to a subsequent marriage.

[26] The court then addressed the question whether the will as a whole, and not merely some gift in it, must be made in contemplation of the particular marriage to be celebrated, adopting Re Coleman, [1975] 1 All E.R. 675 at 680. The court concluded that the whole will, not “some substantial part of it”, must be made in contemplation of the marriage.

[27] I respectfully adopt those interpretations.

[28] The question then in the case at bar is, whether the words in the will “my spouse

KAREN CHRISTIANSEN, and the creation, by words, of a spousal trust in favour of Ms. Christiansen and the appointment of “Karen” as the trustee of the spousal trust fund amount to sufficient declaration that the will is made in contemplation of the subsequent marriage.

[29] The respondent submits that in accordance with the holding of the chambers judge, the words do not amount to sufficient declaration, absent which the Court may not consider extrinsic evidence.

[30] With respect, that position does not accord with established authority. Again, the law on this point was usefully summarized in Ratzlaffat paras. 35-36:

[35] I adopt the position of Lord Cairns in Charter v. Charter, as did Idington J. in Marks v. Marks, that the court has a right to ascertain all the facts which were known to the testator at the time he made the will and thus to place itself in the testator’s position in order to ascertain the meaning and application of the language he uses. A probate judge is entitled to take into account the surrounding circumstances which existed at the time of the execution of the will in order to determine the proper construction of the will. The extrinsic evidence can include utterances and non-testamentary writings as well as direct evidence.

[36] That position is consistent with the approach in Re Foss. The testator, Foss, made his will in 1956 some eight days before his marriage. He stated in his own handwriting on a printed will form “I give devise and bequeath all my personal belongings money, shares in companys, insurance policys and property to my wife (Mrs. P. Foss)”. The will was duly executed. It was common knowledge that Mr. Foss was to be married in a few days. He died in 1972 leaving a widow and three infant children. Helsham J. considered whether extrinsic evidence would be admissible in these terms:

Whilst it is correct to say that the fact that a marriage was contemplated must appear by some expression in the will itself, it is also correct to say that whether the will contains such an expression must depend upon the construction of the will. If the will clearly contains such an expression, then there is no problem. If it does not, but there are some words which may or may not amount to such expression, then the will must be construed so as to find its true meaning. In order to ascertain the meaning of the words used by a testator it is permissible to construe the document in the light of the surrounding circumstances. This is the law in relation to ambiguities of language used in a testamentary document, and applies no less to the aspect of whether a testator has expressed the fact that his marriage was contemplated as to any other. For limited purposes the Probate Court has always been a court of construction, one purpose being to ascertain whether a will should be admitted to Probate: In the Estate ofFawcett (Dec’cf.) (3). This is such a case.

He concluded:
The problem arises in relation to evidence. When it is necessary to decide whether a will has not been revoked by a subsequent marriage, because it is expressed to be made in contemplation of a marriage, is it permissible to admit evidence of the circumstances that existed at the time the will was made – to read what the testator said in his will bearing in mind the situation that pertained at the time, or is the court confined the terms of the will itself in order to ascertain whether it is expressed to be made in contemplation of marriage?

There can be no dispute that evidence is admissible as to the marital state of the deceased and any interested party at the date the will was made, and of the subsequent marriage of the deceased.

That brings up the matter for decision. But can the court consider any other facts, as for example, that the deceased was engaged to be married, whether or not he was living with a person whom he describes in his will as his wife and whom he subsequently married, what time elapsed between will and marriage, and so on? On this matter of evidence views has differed.

After referring to Charter v. Charter, supra, he continued:
In my opinion where a question arises as to whether an expression used by a testator in a will is sufficient to prevent revocation, by subsequent marriage, of that will by reason of the operation of s. 15(2) of the Wills, Probate and Administration Act, then extrinsic evidence of surrounding circumstances, in addition to the fact and date of marriage, will be admissible in order to answer the question.

This approach is also consistent with what this Court stated in Haidl v. Sacher.

[Footnotes omitted.]

[31] The court concluded, at para. 41:

[41] Thus, evidence of the surrounding circumstances is admissible to construe the relevant clause in the will for the purpose of deciding whether it should be admitted to probate. The “surrounding circumstances” are admissible.

[32] Similarly, in Layer v. Burns Philp Trustee Co. Ltd. and others (1986), 6 N.S.W.L.R. 60 (C.A.), Mahoney J.A. held at 65:
Where it is clear that a word or term used has, amongst its accepted or dictionary meanings, a number of different meanings, extrinsic evidence is admissible to assist the court in determining which of such meanings the word or term bears in the particular case.

[33] The Shorter Oxford English Dictionary, 6th ed. (Toronto: Oxford University Press, 2007), notes the origin of the word “spouse” from the Latin sponsus bridegroom, sponsa bride, and defines “spouse” as a “married person; a person’s lawfully married husband or wife”.

[34] Similarly, in Taylor v. Rossu, 1998 ABCA 193,161 D.L.R. (4th) 266 at para. 92, the court held that “The ordinary meaning of the word “spouse” is a person who is joined in lawful marriage to another person.”

[35] On that basis, there is arguably no ambiguity and the term used in the will can be said to refer to Mr. MacLean’s wife whom he was yet to marry, Ms. Christiansen.

[36] By contrast, the chambers judge found no ambiguity because, at the time in

Mr. MacLean and Ms. Christiansen were living in a “common law” (or “spouse-like”) relationship. There is authority to support that conclusion. For instance, in Ferguson v. Armbrust, 2000 SKQB 219, 187 D.L.R. (4th) 367 at para. 41, the court found that “‘spouse’ may reasonably be interpreted as being limited to legally married spouses or as including both legally married spouses and common law spouses as the context requires”.

[37] If one accepts that the word “spouse” may refer to either a legally married person or a person living in a marriage-like relationship, then the use of the word in the circumstances at bar was ambiguous. Extrinsic evidence is thus admissible to determine the meaning in this case.

[38] The circumstances of the making of the will in this case were summarized in the appellant’s factum:
(a) The Will was made after joint tax and estate planning with Ms. Christiansen.
(b) Both Mr. MacLean and Ms. Christiansen were sophisticated financial professionals.
(c) The Will was executed after the wedding date and arrangements had been set.
(d) The solicitor preparing the Will knew of the wedding; was invited to and attended the wedding reception and advised Mr. MacLean and Ms. Christiansen on honeymoon travel arrangements to Italy.
(e) [The Will] was prepared at a time when Mr. MacLean and Ms. Christiansen were living in a stable, long-term, common-law relationship.
(f) The Will provides for benefits to Ms. Christiansen under a spousal trust.
(g) The Will speaks of Ms. Christiansen as his spouse.
(h) The Will addresses and balances the needs of Ms. Christiansen and of Mr. MacLean’s children.
(i) As their wedding date approached in May 2007, Mr. MacLean told Ms. Christiansen that he intended to have a Will and Power of Attorney in place before they were legally married.

[39] When one examines the terms of the will and the circumstances in which it was prepared, there can be no doubt that Mr. MacLean intended that the will would survive his marriage to Ms. Christiansen and provide for her for the remainder of her life. On her death, the one-half of the residue of the spousal trust then remaining would form part of the residue for the benefit of the testator’s children. This was obviously a carefully constructed estate plan. The extrinsic evidence overwhelmingly supports the construction that “spouse” meant Mr. MacLean’s legal spouse, to whom he was, at the date of making the will, not married but was clearly contemplating marrying.

[40] Further, the whole will was drafted in a manner in which it cannot be said that only the gift to Ms. Christiansen was contemplated. The spousal trust and the children’s fund planned as an integral part of a whole. In my opinion, the whole will was, when one examines the extrinsic evidence, expressed to be made in contemplation of the impending marriage to Ms. Christiansen.

[41] As the Supreme Court of Canada stated in Marks v. Marks (1908), 40 S.C.R. 210 at 212:

In other words, it is claimed that there cannot be any one who can answer to that description “my wife” except the one person who may in law be decided to be such.

I do not think the law so binds us.

Unless it does, I do not see why we should pervert the most obvious intention of this testator. I think we are bound to read his language in light of all the circumstances that surrounded, and were known to him when he used it and give effect to the intention it discloses when so read.

[42] This construction of the will further satisfies the legal presumption against an interpretation of a will that would create an intestacy. Thus, in Re Harrison; Turner v. Hellard (1885), 30 Ch. D. 390 at 393-394 (C.A.), Lord Esher, for the Court, held:

… when a testator has executed a will in solemn form you must assume that he did not intend to make it a solemn farce – that he did not intend to die intestate when he has gone through the form of making a will. You ought, if possible, to read the will so as to lead to a testacy, not an intestacy. This is a golden rule.

[43] It follows that I would find that the references to “spouse” in the will and the extrinsic evidence establish that Mr. MacLean’s will was made in contemplation of his marriage to Ms. Christiansen. I would therefore order that the will be admitted to probate.

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