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Is Your Will Open to Interpretation?

By Wills & Estates Team (posts)

The Importance of Precise Drafting for Wills & Estate Planning

When it comes to putting your last wishes into writing, clear and precise language is critical. A seemingly straightforward written instruction may prove difficult to interpret later when your executor is attempting to carry out your directions. This situation happened in a recent case decided by the BC Supreme Court, Roberts Estate (Re) 2021 BCSC 1732.

The Dilemma

Helen Roberts’ Will included a charitable gift. The issue before the Court was how much Ms. Roberts had actually intended to give. The clause in question directed her executor “to pay and transfer the sum of Ten Thousand ($10,000) a year for a period of ten (10) years to the following charities…” and provided a list of eight charities.

Ms. Roberts’ daughter argued that the language meant the charities would share $10,000 a year, while on the other hand the charities argued that they should each receive $10,000 a year. This difference of opinion was significant. Under the interpretation of Ms. Roberts’ daughter, the gift would add up to $100,000. If the charities were correct, they would receive $800,000.

The Court’s Role

When faced with ambiguity like this, the Court’s goal is to determine the will-maker’s intention at the time the Will was written. The starting point for this inquiry is the language itself. The Court will try to give the words of the Will their plain and ordinary meaning. If the plain meaning of the words is not clear, then the Court will resort to what is known as the armchair rule, where it “sits in the place” of the will-maker. This means considering what the will-maker would have known about their assets, family and relationships at the time they were drafting their Will. The Court will then use that evidence to try to establish what the will-maker’s intention would likely have been.

In this case, the Court concluded that the plain meaning of the gift was that $10,000 per year would be divided among the charities, as interpreted by Ms. Roberts’ daughter. The interpretation suggested by the charities would involve adding words to the gift to state that each charity would receive $10,000. A court can only add words to a Will where it is necessary to give effect to the clear intention of the will-maker.  This was not the case here.

The Court also noted that Ms. Roberts had drafted a previous Will in which she expressly gave $10,000 a year to “each of” the charities. That Will had been revoked, and the change in wording in the later Will was evidence that she had purposefully scaled back the gift. Lastly, at the time she drafted the Will, Ms. Roberts’ estate was valued at approximately $400,000. With this figure in mind, an $800,000 charitable gift did not make sense.

The Takeaway

This case is an important reminder about how carefully a Will must be drafted, since even one word out of place may have serious consequences. Having an experienced lawyer assist you with your estate planning can prevent disputes like this before they start.

If you have questions about planning for incapacity, or about fulfilling your obligations under a Power of Attorney, contact our Wills & Estate Team – we’re here to help.
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