Estates & Wills & Trusts

Sloppy will drafting can lead to family feud

By Matthias Duensing

Lorne Hicklin was a well-loved member of his community, who ran an automotive repair shop in partnership with his younger brother James.

Lorne had two daughters, Deanna and Sherri, with whom he maintained a close and loving relationship, grandchildren, a great-grandchild, two living sisters, and many close friends.

In 2004, Lorne visited a lawyer to draft his will. His lawyer followed Lorne’s directions but did not seek any further clarification regarding those instructions.

Lorne’s will appointed his brother James as estate trustee, and made the following two dispositions:

  • To transfer my home to my daughters, Deanna and Sherri, in equal shares, absolutely
  • To transfer the residue of my Estate to my brother, James Hicklin, absolutely; provided that should my brother predecease me then the residue of my estate shall be transferred to my sister, Susie Lalonde, absolutely; provided further that should my sister predecease me then the residue of my estate shall be transferred to my daughters, Deanna and Sherri, in equal shares, absolutely.

Lorne passed away in 2014. Lorne and James had not discussed Lorne’s will, nor did James know that Lorne had appointed him to be his estate trustee, or was himself a beneficiary.

As the administrator of Lorne’s estate, James understood the word “home” to mean Lorne’s place of residence and the contents of the home, but not the garage attached to the home. Accordingly, James removed several vehicles that had been stored in Lorne’s garage.

Lorne’s daughters disagreed with James’s interpretation of their father’s will. The sisters asserted that all of their father’s assets were to be left to them (contents of the home, the vehicles in the garage, scrap metal owned by Lorne but stored on James’s property, a tax-free savings account, and other bank accounts) and only their father’s partnership share in Hicklin Motors was bequeathed to their uncle James.

Deanna brought an application to the Court of Queen’s Bench of Alberta for an order to rectify their father’s will. James appealed the decision to the Court of Appeal of Alberta.

The appeal court focused on the four fundamental principles of will interpretation in its decision:

  1. A will must be interpreted to give effect to the intention of the testator

  2. A court must read the entire will

  3. A court must assume that the testator intended the words in the will to have their ordinary meaning in the absence of a compelling reason not to do so

  4. A court may canvas extrinsic evidence to ascertain the testator’s intentions

The appeal court considered the meaning of the word “home,” reviewing definitions in several dictionaries and other sources, both restrictive (i.e. the sale of a “home” typically does not include personal property in the home), versus broader interpretations.

The range of meanings that could be ascribed to the word home presented the court with the challenge of determining what Lorne’s intentions likely were.

The Court of Appeal provided that the will itself provided support that Lorne intended on taking care of his daughters, given that they are named the beneficiaries of the residue in the event of their uncle and aunt predeceasing their father.

The court further reviewed the extrinsic evidence provided to assist with interpreting Lorne’s intentions. An affidavit provided by an old friend of Lorne’s stated that he had intended on giving his daughters “everything” except for his partnership in his business, and one motorcycle for a friend. Lorne had previously gifted each daughter expensive gifts. The extrinsic evidence also provided that Lorne and James had a business relationship, but not a close personal relationship.

On reviewing the lower court’s decision, the Court of Appeal found no overriding errors and upheld the trial judge’s decisions regarding his interpretation of the will, first that “home” should be interpreted in a broad sense to include the vehicles in the garage, and second that despite the extrinsic affidavit evidence provided that suggested Lorne had intended to leave other assets (such as the bank accounts) to his daughters, the plain meaning of the will is that these assets were intended to be part of the residue of Lorne’s estate.

When drafting a will, it is important not to stick to the language provided by clients. Estate lawyers must probe deeper and draft with precision so that the actual intentions of the deceased are effectuated, and their memory lingers in peace.

To Read More Matthias Duensing Posts Click Here