Will Interpretation - Hull on Estates #198
Listen to: Will Interpretation - Hull on Estates #198
This week on Hull on Estates, Ian Hull and Suzana Popovic-Montag discuss Will interpretation.
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Will Interpretation - Hull on Estates- Episode #198
Suzana Popovic-Montag: Hi and welcome to Hull on Estates. You’re listening to episode 198 of our podcast on Tuesday, February 9, 2010.
Welcome to Hull on Estates, a series of podcasts for the Canadian legal community dealing with issues and insights surrounding estate planning in Canada. Hosted by the lawyers of
Ian Hull: Hi Suzana.
Suzana Popovic-Montag: Hi there Ian. How are you today?
Ian Hull: I’m great. We’re here with Suzana Popovic-Montag and Ian Hull doing podcasting #198. We’re creeping towards 200 for Hull on Estates.
Suzana Popovic-Montag: It’s very exciting.
Ian Hull: Absolutely. So please feel free to check out our web page at hullandhull.com because we carry our daily blog on that as well and the podcasts.
Suzana Popovic-Montag: And if you’d like to leave us a comment, you can do so by e-mailing us hull.lawyers@gmail.com.
Ian Hull: Okay Suzana. Well one of the things that we have been always a big part of our sort of non-contentious, relatively non-contentious practice, has been the question of interpreting Wills. And unfortunately sometimes, notwithstanding the best efforts, a Will does not entirely make sense, the words themselves. So we have to get it interpreted. So we thought today we’d talk a little bit about the process so that it’s not a big bugaboo in terms of those of you who may get involved with one or might hear that it may have to be involved with one.
Suzana Popovic-Montag: And when we’re talking about an interpretation, we’re talking about bringing an application pursuant to Rule 14.05 and the grounds that are set out therein, depending on the nature of the interpretation so that you can get the Court’s opinion, advice and direction on how the Will ought to be interpreted so that the executor has the comfort of a Court Order saying ultimately how the Estate ought to be distributed.
Ian Hull: And when we’re doing this, we try to obviously take a fairly sensible approach to the process itself. The application is usually supported by an Affidavit setting out what information we deem as relevant and important in terms of analyzing what the words mean. The Affidavit itself is typically sworn by the two competing sides. One side thinks the word “but” means this and the other side thinks the word “but” means “and” and we say it means “or”. So they’ll tell a story about the circumstances surrounding the Will.
Suzana Popovic-Montag: And those circumstances really tell the story in the sense that that helps a judge who’s ultimately going to make the determination know what was going on in the mind and around the testator at the time that he or she was creating their Will. And the words were being put into that testamentary document at their instruction.
Ian Hull: So it’s essentially what they call the armchair rule. The Court is asked to sit in the armchair of the deceased and determine just what exactly the words mean and the circumstances surrounding those words. So the first step that we always take is we carefully look at the actual provisions in question. So look at the clause or sentences or words that are problematic.
Suzana Popovic-Montag: And then what you do is, you take that provision or provisions and read it in the context of the entire Will, so that you want to make sure that there’s not possibly some other provision somewhere else later in the Will or earlier in the Will that might help with that interpretation to give it a context.
Ian Hull: And an easy illustration is, of course, when someone refers to say their house and what if they have two houses, in that they have a cottage and a house. And maybe they regularly referred to the house up north and the house in the city or something like that. The word “house” may be unclear as to its application. So if you look at the Will as a whole, you might determine well this clause refers to the word “house”, but the term “house” is a defined term earlier on in the Will. So now we know what the word means. So that’s an illustration of where we can look to the whole Will itself to help determine and maybe easily determine without a Court hearing, what the word “house” means.
Suzana Popovic-Montag: And then Ian, in that example, if you don’t know necessarily what the word means and you can’t pull it from the context of the Will itself, then what do we do?
Ian Hull: Well then we have to start to apply the sort of fundamental rules of interpretation. And really as we said that we have to get into the armchair rule. Now the armchair rule gets expanded in terms of whether or not there is sufficient evidence available to get what we call extrinsic evidence in as well, to start to determine pricelessly what was going on with the use of evidence from. For example, documentary sources like the lawyer’s file, verbal sources like the lawyer’s own evidence or the accountant’s role in this. Or we’ve often had situations where a financial advisor is a core element to what the deceased was really get at.
Suzana Popovic-Montag: And so then just to drill down a little bit, we’re starting with the provision in the Will itself read in the context of the entire Will. And then the judge will be sitting in the armchair of the testator if he or she can’t make the determination as to what the provision actually means. And they’ll look at the surrounding circumstances. They’ll look at, you know, the occupation of the testator, what the testator knew at the time he or she was making that plan, the nature of their assets, who they were intending to benefit. And sitting in that armchair of the testator trying to draw from that based on the admissible evidence what it was that was ultimately intended.
Ian Hull: And you used the words “admissible evidence” and that is, of course, a very tenuous problem in situations where there are Wills because the Court typically just wants to look for the plain meaning. What is the plain meaning of the words? And if they can’t find it and they have to continue to drill down in evidence, they get more and more nervous because it brings uncertainty as to whether or not you’re guessing at what the testator wanted. Or are you really determining it in the context of the words of the Will itself?
Suzana Popovic-Montag: And at the end of the day, we’re really trying to determine what did the testator intend when he or she used those words in the Will? So what was it ultimately intending to provide for? And when you look at the kinds of evidence that a judge will say may be admissible in the circumstances, I think what you were getting at a little bit earlier was to suggest that there’s a difference between direct evidence of that intention, which is the evidence of the solicitor’s instructions, for instance and then indirect evidence of intention which I think, based on, you know, our experience, the Courts are a lot more comfortable admitting in an interpretation.
Ian Hull: Absolutely. And I think really, I mean as we’ve often discussed, the situation with interpretation is you’re looking at the words themselves to understand what the intention of the testator was when he said those words and what did he mean when he said those words? And/or she said those words, of course. So you can see that this analysis can get fairly caught up in the evidentiary rules of the Courts plus it can get caught up in what is relatively a tenuous determination that is intention itself. So the final backdrop to any interpretation is to consider as well the other completely viable option in terms of fixing a Will or in terms of determining what the words of a Will actually mean. And that is, of course, rectification.
Suzana Popovic-Montag: And that is really a different remedy, I would say, Ian when you’re looking at trying to fix a Will as opposed to trying to interpret the Will. And I say that only because on a rectification, we know that direct evidence of the intention is clearly admissible. And so a judge is not going to struggle necessarily with the kind of evidence that’s going to go into the determination because there that judge is actually charged with determining what it was that it was intended and making that actually happen.
Ian Hull: So the actual avenue of rectification can be actually a much more efficient and actually a more, in a sense, truthful way to go at what the true intentions of the deceased were, because you’re entitled to the wider scope of evidentiary exposure for the judge. The problem that comes from, in rectification in some respects, is how to fix the Will. The British texts say that you’re not allowed to add Wills. You have to only delete words…not add Wills, add words… And whereas there’s some flexibility in Canada but adding and deleting words is all you really are entitled to do. So in and of itself the Will may be only can be…the words can only be fixed but it may not solve all your problems with respect to really determining the intention of the deceased.
Suzana Popovic-Montag: And in situations, you and I have seen in the past, what happens in those cases is that you start with a rectification application and try to rectify the Will as much as possible. But then you may be faced with a further interpretation by the Courts saying okay, now that we’ve gotten the words to the extent that we possibly can, please help us interpret how to apply those words and how to ultimately distribute the Estate, you know, given the ambiguity, the uncertainty, the unclarity.
Ian Hull: Absolutely. So anyway, I think that really sets out the basic parameters of interpretation proceedings and rectification proceedings. And we’re certainly happy to drill down on that because there is mountains of literature on this and mountains of case law on this whole question of interpretation.
But we’re going to be later this week spending some time with the Law Society interestingly to talk about passing accounts. There’s a great program that we’re going to be involved with to deal with passing accounts. A different topic and it may be our topic at our next Hull on Estates or it might be on our Hull on Estates and Succession Planning. But anyway, thank you very much for joining us today. Suzana, thank you for co-hosting.
Suzana Popovic-Montag: It was a pleasure Ian. And I look forward to podcasting with you again soon.
Ian Hull: So please feel free to take a look at our web page at hullandhull.com and follow our daily blog.
Suzana Popovic-Montag: And you can, of course, leave us any comments at hull.lawyers@gmail.com. Until next week, thanks very much Ian.
Ian Hull: Thank you Suzana.
This has been Hull on Estates with the lawyers of Hull & Hull. The podcast you have been listening to has been provided as an information service. It is a summary of current legal issues in estates and estate planning. It is not legal advice and you are reminded to always talk with a legal professional regarding your specific circumstances.
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