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    Evidence in Will Interpretation

    Challenging a Will

    Wills can be complex, and sometimes interpreting the exact wishes of a Will-maker (testator) can be confusing. What is a beneficiary supposed to do when a clause in the Will is vague or ambiguous?

    Consider the following scenario:

    John Doe passes away in 2020. He leaves a Will that he executed in 2015. The Will states “Jane Doe has the sole, absolute right to occupy the property, as long as she pays all property taxes, fees, excluding the water bill, hydro, telephone and internet charges”.

    Jane claims that John told her she did not need to pay the water bill, hydro, telephone, or the internet charges, whereas the trustee interprets the Will to say that Jane needs to pay all but the water bill.

    In Court, can Jane rely on what John told her before his death, to claim that she does not need to pay for hydro, telephone, and internet? The short answer is “no”.

    The Armchair Rule

    Rule 14.05(3)(d) of the Rules of Civil Procedure, and Section 60 of the Trustee Act provides a mechanism for the Court to interpret an unclear clause in a Will to determine peoples’ rights under the Will.

    When doing so, the general approach by a judge when interpreting a clause in a Will is to apply the “armchair rule”. This means the judge places themselves in the position of the testator when the will was made to determine the testator’s intention.

    In doing so, the judge should look at the circumstances which existed when the testator made the Will and the Will as a whole, including the specific language used and the other provisions in the Will.

    Indirect Extrinsic Evidence

    To help the judge determine the testator’s intention the judge should consider indirect extrinsic evidence. Indirect extrinsic evidence is evidence that helps inform the surrounding circumstances at the time the testator made their Will. This includes things like the testator’s occupation, the testator’s relationship with their family, and who was friends with the testator. This evidence is used to help explain what is written in the Will.

    Direct Evidence

    In contrast, what is not allowed, even though it might seem to matter, is direct evidence. Direct evidence includes things like statements the testator made regarding their intention with their estate when they die; the testator’s handwritten notes directly stating what should happen with their property; and what the testator told their lawyer (and what the lawyer told the testator) about their Will.

    This type of evidence is not generally allowed in interpretation applications because it would undermine the purpose of drafting a Will. Therefore, Jane cannot rely on the fact that John told her she did not have to pay the water, hydro, telephone, and internet charges.

    Direct evidence will only be allowed when the part of the Will that is being interpreted could equally apply to two or more different people or things and the judge needs to determine who it applies to. This does not mean judges can use direct evidence when there is some confusion or difficulty in interpreting the Will, but rather, is reserved for when there are two equally logical ways of reading and applying a clause.

    If you are interested in reading further, the 2018 case of Janicek v. Janicek deals with the application of evidence in Will interpretation.

    The Estate Litigation team at Merovitz Potechin LLP has experience working with clients on Will interpretation matters. Contact our lawyers at 613-563-7544 if you have questions or to book a consultation.

    The content on this website is for information purposes only and is not legal advice, which cannot be given without knowing the facts of a specific situation. You should never disregard professional legal advice or delay in seeking legal advice because of something you have read on this website. The use of the website does not establish a solicitor and client relationship. If you would like to discuss your specific legal needs with us, please contact our office at 613-563-7544 and one of our lawyers will be happy to assist you.

    Aaron King

    Posted By: Aaron King of Merovitz Potechin LLP


    Aaron King is a litigation associate at Merovitz Potechin LLP practicing in the areas of commercial and civil litigation, estate litigation, mortgage enforcement and other debt collection.

    Aaron enjoys the intricacies and challenges of litigation and approaches each unique case attentively and thoroughly. He focuses on how he can help his clients in the most effective ways, understanding that litigation is rarely an ideal situation.

    Aaron has always had an interest in law and knew early on he wanted to become a lawyer. Prior to law school, Aaron attended Carleton University where he graduated with a Bachelor of Arts (Honours) with a focus on Legal Studies.

    During law school, Aaron focused on litigation and took on a variety of challenges in different areas of law. Aaron participated in two international competitive moots – The Willem C. Vis moot, an international commercial law and arbitration moot in Vienna, Austria, and the Philip C. Jessup moot, a public international law moot in Washington D.C. Aaron continues to give back to the moot program at the University of Ottawa, most recently coaching the Wilson Moot team.

    Coming from a criminal law background, Aaron has a lot of experience advocating for his clients in the Courtroom with various trial and motion appearances. He recognizes, however, that many disputes can be resolved before going to court and focuses on alternative methods to resolving various issues efficiently and effectively before resorting to trial.

    Outside of the office, Aaron enjoys spending time with his family, playing soccer, and drinking coffee.