Will Interpretation FAQ

  • I say the will means one thing, the executor says it means something else. I know the testator did not mean to disinherit me. How can I prove this?

    • The court must interpret the will to determine who the testator was referring to.
    • In order to answer this question, the court will try to put itself into the "armchair of the testator" and read the will in the context of the things known to the testator.
    • Statements of disappointed beneficiaries about the testator’s intentions are not admissible in court.
    • The judge can look at other evidence to show how the testator used words.

    The primary evidence of the testator’s intention is the will itself.  The whole will, not just the ambiguous parts, must be considered.  If the meaning of the will is still unclear, then other evidence can be considered to assist the judge in determining what the words used mean.

    However, the evidence of disappointed beneficiaries about the testator’s intention is not admissible in court.  Even the testator’s statement of intention to the lawyer drafting the will is not admissible in court.

    These principles were applied in one of our cases.  The will left a gift of the residue of the estate to the grandchildren and great-grandchildren.  It was not clear whether the step-grandchildren and step-great-grandchildren were included in the gift or not.

    The judge held that they were not included.  A key piece of evidence was a list of beneficiaries found in the file of the lawyer who drafted the will.  Under the heading of "grandchildren and great-grandchildren" the testator had written down the names of her legal descendants, but not the names of the step-children.

    Since this case was decided the Wills, Estates and Succession Act was enacted.  The new Act confirms that the court can look outside the will to interpret language that is ambiguous.  The Act also gives the court a new power to fix a will if the court determines that the will fails to carry out the will-maker’s intentions because of an accidental slip or omission, a misunderstanding of the will-maker’s instructions, or a failure to carry out the will-maker’s instructions.  In that case extrinsic evidence, including evidence of the will-maker’s intent, can be used to prove what the will-maker wanted to do through the will.

    If you need help interpreting a will, contact us.

    Read the case:  Lang Estate

  • Who inherits when the will gives the estate to the "issue" of people?

    • "issue" is a word sometimes used by lawyers to describe the descendants of a person
    • What the words in a will mean depends on what the will-maker intended them to mean

    In Barnes Estate v. Barnes the will-maker left her estate to her two sons, Ernest and Kenneth, but if either were pre-deceased her, the "issue" of her sons would take their father’s share.  Both sons died before the will-maker died.  Ernest’s son claimed that Kenneth’s children were not his biological kids, so they should get nothing.

    The court disagreed and said that "issue" was not just the biological children.  This was a will, and the objective of the court is to determine what the will-maker meant by her words.  Courts use the "armchair rule", putting themselves in the position the will-maker was in when she made the will, and interpreting the words in the will in light of what the will-maker knew at that time.

    In this case, the will-maker knew that Kenneth has two children around the age of 30, that he had always treated them as his children, and the family had always assumed they were his children.  Kenneth’s wife, the mother of the children, swore they were Kenneth’s kids.  In addition, the will-maker obviously thought they were Kenneth’s kids and wanted them to inherit or her will would not have referred to Kenneth’s "issue".

    The words used in wills can make them difficult to understand, but we can help.  Contact us.

    Read the case:  Barnes Estate v. Barnes

  • Who gets to decide what happens to the deceased’s remains?

    • The wishes of the deceased will be binding if they are in the will or a funeral services contract.
    • Otherwise the executor or personal representative gets to decide how to dispose of the remains.

    In Kartsonas v. Stamoulos the dispute was over how the deceased’s remains should be disposed of.  The Cremation, Interment and Funeral Services Act sets out who controls the disposition.  The first priority is given to the personal representative or executor in the will.

    The deceased had written one will in 1978, naming his children as his executors.  He wrote another will in 2007, naming his niece.  The children alleged that the 2007 will was invalid and applied for control of the remains.  The main issue in that hearing was whether the burial should be in BC or Greece.  The judge decided in should be in BC, and gave joint custody of the burial to the children and niece with liberty to apply to court in the event of any further disagreement.

    The next disagreement was as to whether the burial should be a religious one or not.  The deceased had been an atheist, but his children, second wife and other family members wished to have a religious ceremony.  Under the Act, the judge is directed to consider the wishes of relatives, and especially the spouse, and also any reasonable directions given by the deceased.  The judge concluded the balance fell in favour of those that wished a religious ceremony, and gave the children control.

    The niece appealed to the Court of Appeal.  She brought a new document to court, namely a representation agreement that directed that the niece have complete authority to make his funeral arrangements.  The Court of Appeal dismissed the appeal.  They noted that the wishes of the deceased can be made binding on the person with conduct of the disposition of their remains, but only if those wishes are in a will or pre-need cemetery or funeral services contract.  The deceased’s preference for a non-religious funeral was not contained in any of these documents.

    If you have a problem with the estate of a loved one, contact us.

    Read the case:  Kartsonas v. Stamoulos

  • Who gets to say what goes on a headstone?

    • The executor

    In Wiebe v. Bronstein the executor of the deceased was his sister.  She arranged for a headstone that said "beloved son, brother, uncle and friend".  The deceased’s common law spouse wanted to either have "partner" added to this list, or to have this phrase removed.  They could not agree, so the spouse applied to court.

    The judge dismissed the claim.  She decided that decisions about gravestones fall under the Cremation, Interment and Funeral Services Act section 41 and is a matter between the cemetery and the executor.  While a spouse may apply under section 5 to control the disposition of the remains, this section does not extend to headstones.

    We can help if there is an estate-related dispute.  Contact us.

    Read the case:  Wiebe v. Bronstein

  • In a Wills Variation action, can DNA evidence be used to prove that a Testator is not the father of a child even though he is listed as the father on her birth certificate and immigration papers?

    • Only children who are the biological children or adopted children of the deceased can apply to vary his Will
    • Foster children or other children who have been treated by the deceased as his own children are not eligible to apply for a variation of his will.

    In a recent case, Mr. Doman married Mrs. Doman when she was pregnant with a child of another man.  Mr. Doman was identified as the child’s father on her birth certificate and also on her Canadian Immigration card.

    The child was not raised by Mr. and Mrs. Doman but was put in a foster home.  Most of the child’s foster home, schooling, and wedding expenses were paid by Mr. Doman.

    After Mr. Doman’s death, DNA testing was done that concluded that there was no possibility of Mr. Doman being the father of the child.

    The Court held that the Plaintiff was not entitled to apply to vary the Will of Mr. Doman as she was not his biological or adopted child.  The Court further held that this was the case even though Mr. Doman willingly allowed the birth certificate and the Canadian Immigration Card to list him as her father.

    The Court of Appeal upheld this decision.

    If you have a situation that might require DNA evidence, we can help.  Contact us.

    Read the case:  Peri v. McCutcheon