Estates & Wills & Trusts

Alberta estate challenge has lessons for lawyers, clients

By Staff

A recent decision illustrates that testators need to give specific instructions and, more importantly, lawyers need to be precise in their drafting, says Toronto trusts and estates lawyer Daniel Bernstein.

Alberta’s Court of Appeal recently upheld a trial judge’s decision to include personal property in the award to a man’s surviving daughters, to whom he had bequeathed his “home.” That was over the objections of the dead man’s brother, who hoped to inherit the disputed items as the beneficiary of the estate’s residue.

Bernstein, a founding member with Weltman Bernstein, says he wasn’t surprised by the result but says an opportunity was missed to save the time and expense associated with the entire action.

“The lesson for testators is that they need to give specific instructions, but even more importantly, lawyers need to understand that they must be precise in their drafting,” he tells

The testator in the case died in 2014, a decade after signing a will that left his home to his two daughters, with the residue of the estate to go to his younger brother and business partner, who was also named as its executor.

When a dispute arose over whether the meaning of “home” in the will should be construed to include personal property of the deceased, a judge ruled in favour of the daughters, concluding that they could inherit four motorcycles, a motorcycle trailer, truck and other property in the garage at their father’s place.

The unanimous three-judge appeal court panel found the trial judge made no reversible errors in his decision and was within his rights to accept extrinsic evidence from a friend of the deceased, as well as to interpret the word “home” broadly to include personal property that contributes to its enjoyment.

“There is ample evidence to support the Court’s conclusion that the testator intended ‘home’ to be interpreted broadly. This interpretation is the best match for the testator’s object of financially assisting his daughters after his death,” the appeal court decision reads.

“The most important thing for the court is that the man’s intentions were understood, and if extrinsic evidence could help, then it should be allowed in,” Bernstein says.

While Alberta’s Wills and Succession Act provides statutory authority for judges to call extrinsic evidence as to a testator’s intentions, Bernstein says their Ontario counterparts would have to consider common law principles suggesting a court may admit such evidence in situations where there is some ambiguity in the will.

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