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What happens if the words in a will seem to contradict statements made by the deceased prior to his or her death?  The Ontario Superior Court of Justice examined this issue in a recent case (Royston (Trustees of) v. Alkerton).

The Facts

The deceased was the mother of five children (Michael, Peter, Laura, Alan, and John).  John and Alan predeceased her.  Alan had two children of his own (Jacob and Jennifer).

The deceased executed a will in May 2014, which replaced an earlier Will, executed in 1993.  The 2014 Will contained a clause [4(f)] dealing with the distribution of the residue of her estate.  It read as follows:

My Trustees shall divide the residue of my estate equally among my children alive at my death; but if any child of mine dies before me, leaving issue alive at my death, my Trustees shall divide the part to which that deceased would have been entitled if alive on [sic] at my death among that child’s issue in equal shares per stirpes.

Jacob and Jennifer argued that they were entitled to share equally in one quarter of the residue of the estate.  They reasoned that because their father predeceased his mother, they were entitled to the share of the estate that would have passed to their father.

Laura argued that at the time of the execution of her mother’s will only three of her mother’s children were alive, and she was aware of that fact.  Laura said that her mother intended to divide the residue of her estate amongst her three living children, and only if one of those three predeceased her, would the residue go to the children of that child.  She argued that Jennifer and Jacob were brought up in a wealthy family and were adequately provided for.  She said that Jennifer and Jacob spent very little time with the deceased in the months leading up to her death, and she believed that her mother did not intend to leave part of her estate to them.

The executors of the estate sought the opinion, advice and/or direction of the court regarding the interpretation of clause 4(f).

The Court’s Decision

As a general rule, when construing a will, the testator’s intention must be determined from the words used in the will and not from extrinsic evidence of intent (Rondel v. Robinson Estate).  If the testator’s expression of intent is less than perfect, extrinsic evidence is admissible to aid the construction of the will, but such evidence will be limited to the testator’s circumstances, and those surrounding the making of the will.  Direct evidence of a testator’s intentions is inadmissible.

In this case, the Court saw no reason to restrict the words “my children” in Clause 4(f) of the Will as meaning anything other than their plain meaning.  “My children” meant all five of the deceased’s children, including those who had predeceased her.

She limited the children who were to share in the distribution of the residue of her estate to those of her children who were alive at the date of her death, however, she went on to provide for the children of her deceased children.  Had she intended to benefit only the children of her children who were alive at the date the Will, she could have done so.  She could have excluded Alan’s children at the date of the Will, but she did not.

Jacob and Jennifer were entitled to share 1/4 of the residue of the estate.

What’s the Lesson?

Just as we discussed in our blog on mutual wills, clarity is so important.  In order to help avoid arguments and misinterpretations of your wishes, do you very best to express your intentions for the distribution of your estate as plainly and clearly as possible.  If circumstances change and your will no longer reflects your intentions regarding the distribution of your estate, ensure that you update your will.

Contact Gelman & Associates for help writing or updating your will.  It’s so easy to put off this task (many Canadians do!), but a little time and effort now will contribute greatly to your peace of mind in the future!

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