Estates & Wills & Trusts

Dictionary definition helps decide will challenge

By AdvocateDaily.com Staff

Testators should steer clear of ambiguous language if they wish to avoid a will challenge after their death, says Toronto wills and estates lawyer Matthew Urback.

In a recent decision, Alberta’s Court of Appeal upheld a lower court judge’s decision to include personal items located on the deceased’s property in the award to his surviving daughters after he bequeathed his "home" to them. That ruling came over the objections of the dead man’s brother, who hoped to inherit the disputed items as the beneficiary of the estate’s residue.

Urback, partner with Shibley Righton LLP, says the case should serve as a warning to testators, especially those with modest estates where litigation can easily erode a significant chunk of it.

“Include more detail and don’t use ambiguous language,” he tells AdvocateDaily.com. “It should all be designed to allow someone looking at the will to ascertain exactly what property it relates to.

“If you’re naming property, it should be described as clearly and concisely as possible. Some people will spell out the address or give some type of legal description,” Urback says.

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 executor of the estate.

When a dispute arose as to whether "home" should 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 items 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 “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 concluded after consulting several English-language dictionaries to confirm the word’s use to convey multiple meanings.

“I’m not surprised with the way the decision was reached, but it was interesting to me that the 138-paragraphs essentially came down to one word, and it looks like it was the authority of the dictionary that gave the motions judge the authority to look beyond the four corners of the will,” Urback says.

Alberta’s Wills and Succession Act provides statutory authority for judges to call extrinsic evidence as to a testator’s intentions, but Urback says it’s likely an Ontario judge would have reached a similar conclusion based on common law that allows judges to admit such evidence, as long as the contents of the will reveal some ambiguity.

“I think the wording of the will was sufficiently unclear that the evidence from the friend would have been allowed,” he says.

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