Commonly Encountered Will Interpretation Problems
I am excited to be “back on”, so to speak, with another opportunity to shed some thoughts on estate matters. In particular, I have the pleasure this week of posting snippets of a wonderful article prepared by Rodney Hull, Q.C., who himself has been swept up by the whole concept of social media. Rodney has graciously allowed me to share with you the following …
RECOGNIZING SOME COMMONLY ENCOUNTERED INTERPRETATION PROBLEMS
Each problem faced by practitioners in determining the meaning of words used in a Will can be dealt with by:
(1) Identifying the problem by its name or subject;
(2) Giving an example of wording that raises the problem;
(3) Stating the facts or circumstances pertinent to the problem;
(4) Stating the questions raised; and
(5) Pointing out where the problem has been treated in a general way, i.e. where to start research of the problem.
In many cases, one cannot achieve certainty as to the meaning of words used in a Will and, in those circumstances, one is well advised to bring an Application for interpretation before the Court under Rule 14 of the Rules of Civil Procedure in order to indemnify the personal representative by acting on the Court’s interpretation (as provided in section 63 of the Trustee Act).
If such an Application to the Court is not economically viable and the personal representative is prepared to act on counsel’s opinion, counsel giving the opinion should point out the provisions of section 63 of the Trustee Act to the personal representative. He or she should consider including a clause in his or her opinion along the following lines, “While my opinion as to the meaning of the words of the Will is based upon legal principles and proper research, the matter is not without some doubt and, as I have advised you, the personal representative can only act with certainty of indemnification by seeking the Court’s advice and direction as provided in section 63 of the Trustee Act”.
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Tomorrow, we’ll get into some actual interpretation problems …
All the best – Suzana.
