Re Brookes estate 2011 BCSC 1606 involves a hand written half page BC will, in which the testator appointed his brother as executor and provided:
” I leave my property ( address stated) to my brother executor with power of attorney. Also my accounts at Royal Bank of Canada merit, BC”
The will then listed the names and addresses of the five respondents adding:
“I would all the people named above to share equally in my estate”
The testator’s estate consisted of his house and bank accounts totaling approximately $275,000.
The petitioners brother claimed that he had been left the house and bank accounts-in effect everything for his own use.
The court found that the assets were instead left to the brother as executor, with him and the five respondents to share equally in the entire estate.
Some of the important rules of wills interpretation utilized by the court are as follows:
1. The court’s task in construction of a will is to give effect to the intention of the testator, which is normally accomplished by giving “fair and literal meaning to the actual language of the will.” Re Browne, [1934] SCR 324 at p. 328, Easter v. Bush (1999), 26 E.T.R. (2d) 184 at para. 35. The fundamental principle , as stated in Re Browne at p. 330, is:
Effect must be given to the testator’s intention ascertainable from the expressed language of the instrument. . So far as possible, the will itself must speak. . If, after careful consideration of the language used, in the particular passage immediately under examination and consistently with the context of the document, the intention remains doubtful, then resort may be had to certain rules which have been generally adopted.
2. The court should make every effort to reconcile two apparently conflicting provisions of a will, rather than absolutely ignoring one or the other: Re Estate of Douglas Carson Smith, 2008 BCSC 1189 at para. 34.
Where there is an obvious ambiguity or omission, the court may ignore, add or substitute words, but only to a very limited degree and only when the intention is plain and clear: Milwarde-Yates v. Sipila, 2009 BCSC 277 at para. 48. Further words cannot be read in “[u]nless one can be reasonably certain from the context of the will itself what are the words which have been omitted”: Laws et al v. Rabbitt et al, 2006 BCSC 1519 at para. 56, citing Re Follett Estate, [1955] 1 W.L.R. 429 (Eng. C.A.).
3. Extrinsic evidence may be used to resolve ambiguity. A frequently quoted description of that process comes from Re Burke (1959), 20 D.L.R. (2d) 396 (Ont.C.A.) at 398, which was approved by the British Columbia Court of Appeal in Davis Estate v. Thomas (1990), 40 E.T.R. 107 and Smith v. Smith Estate, 2010 BCCA 106:
“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. ”
