Commercial Litigation and Dispute Resolution Blog

Despite the intentions of a testator and the best drafting skills of their lawyer, there are often occasions when there is an ambiguity or apparent error in the resulting will.  These can be anything from small typographical mistakes through to directly conflicting descriptions of a testator’s assets, beneficiaries or wishes.  The difficulty for an executor is trying to determine exactly what was meant in order to properly administer the estate.  A failure to do so correctly may expose the executor to claims by disappointed beneficiaries.  The executor’s task is not made any easier by the fact that, more often than not, there is a time lapse of many years between the date the will was originally drafted and the date the ambiguity is discovered.  The testator is no longer around to ask and the executor is left to divine the true intent from the tea leaves of history.

One avenue of resolution is to seek the agreement of all the beneficiaries on the intended meaning.  However, this is can be difficult to obtain as there is often a division of view over what was meant: a division frequently underscored by the prospect of financial benefit.  In such cases, the only safe course open to an executor is to seek a declaration from the court on the construction of the will.

How will the court address such issues?  A recent case provides a concise example.  The testatrix owned a half interest in an apartment building which she left to one of her three adult children.  Though the apartment building had a single civic address, it was actually comprised of four separate legal titles.  The difficulty was that, in her will, the testatrix made reference to only one of the four parcel identifier numbers (PID) that formed part of each legal description for the land.  Elsewhere, she had used the civic address and made reference to the fact it was four lots.  She also set out reasons in her will why she favoured one child over the other two in bequeathing this half interest to that child. 

Given the value of the apartment building, it is little surprise that the other two children challenged an interpretation of the will that saw their sibling inheriting the entire interest.  They took the view that the bequest was ambiguous and either unenforceable or limited to one of the four legal titles.  The result, they argued, was that the remaining three lots were part of the residue of the estate to which they were entitled to one third shares.  The executor sought the assistance of the court.

When faced with such situations, the courts turn to well-established principles of construction.  First, the court will look at the language used in the will itself to see if the intention of the testator can be determined.  If that does not resolve any ambiguity, the court is entitled to look at the surrounding circumstances known to the testator at the time the will was drafted.  This involves a consideration of evidence extrinsic to the will as an aid in construction.  Such evidence is intended to explain what the testator has written, not what he or she intended to write.  As a result, the court will only consider certain types of evidence.  Admissible evidence includes things like a testator’s occupation and property; his or her financial situation; relationships with family and friends; and the natural objects of his or her grant in the will.  Inadmissible evidence includes notes or statements of the testator as to intention, or instructions given to a lawyer in preparing the will.  This distinction is intended to avoid other written or verbal statements of intent from hijacking or altering the intent expressed in the will.  It is the will alone that governs.

In the apartment case, the court looked at extrinsic evidence to find there was no ambiguity in the will and that its proper construction saw the entire interest in the apartment go to one child.  This was so because, despite the absence of three of the four PID numbers, the testatrix identified the property in the manner she always had: by the civic address.  She also mentioned the existence of four lots and gave reason in the will why she favoured a single child with this bequest.  The omission of three of the PID numbers was a “minor error”.  An ambiguity would only exist if the testatrix intended to identify her property by using PID numbers, technical numbers of which the court found she was “unlikely to have any knowledge or understanding”.  The inclusion of any PID numbers added no further necessary information to the will to make clear the testarix’s intent.

For any executor uncertain of a will’s meaning, this case demonstrates two things.  First, you can look at what the deceased knew and how they conducted their affairs at the time the will was drafted to help resolve any ambiguity.  Second, you can appropriately seek the assistance of the court to confirm that interpretation.  Lastly, the cost of doing so is properly an expense of the estate, particularly where the beneficiaries are not all in agreement over the interpretation.