Legal Research Guide
to Wills and Succession
2006
Compiled by Eric B. Appleby
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Table of Contents
What is a will?
........................................................................ Chapter 1
1.1 Why make a will?
1.2 Capacity to make a will
1.3 Formalities required to make a will
1.4 The Executor
1.5 Change or Revocation of a will
1.6 Intestate Succession
1.7 Marital Property Legislation
1.8 Protection of Testator’s Family
1.9 Living wills
Testamentary Instruments
..................................................... Chapter 2
2.1 Wills
2.2 Codicils
2.3 Conditional wills
2.4 Incorporation by reference
2.5 Legal formalities, general
2.6 Wills by military
2.7 Holograph wills
2.8 Successive wills
2.9 Mutual wills
2.10 Power to designate a beneficiary outside a will
Testamentary Capacity
........................................................... Chapter 3
3.1 General principles
3.2 Presumption of capacity
Donees .................................................................................... Chapter 4
4.1 Generally
4.2 Capacity to benefit
4.3 Disqualification of donees
4.4 Identification of donees
Preparation and Execution
...................................................... Chapter 5
5.1 Generally
5.2 Signature
5.3 Signature, What constitutes
5.4 Attestation
5.5 Curing of irregularity
5.6 Undue influence, What constitutes
5.7 Alterations and Deletions
5.8 Presumption of Due Execution
Revocation .............................................................................. Chapter 6
6.1 Generally
6.2 Revocation by subsequent will
6.3 Revocation by act of testator
6.4 Presumption of revocation where will is lost
Revival
................................................................................... Chapter 7
7.1 General
Gifts
....................................................................................... Chapter 8
8.1 Generally
8.2 Accretions
8.3 Income from property
8.4 Interest on legacies
Conditional gifts
..................................................................... Chapter 9
9.1 Generally
9.2 Public policy
9.3 Conditions precedent
9.4 Conditions precedent and subsequent
9.5 Vested defined
9.6 Vesting, contingent gifts
9.7 Rules against remoteness of vesting
Lapse .................................................................................... Chapter 10
10.1 Generally
10.2 Devolution of lapsed gift
10.3 Tracing (exception from lapse)
Failure of Gifts
..................................................................... Chapter 11
11.1 Generally
11.2 Implied revocation, ademption
11.3 Failure of Gifts, Uncertainty
11.4 Failure of Gifts, Impossibility
11.5 Failure of Gifts, Repugnancy
11.6 Failure of Gifts, Partial failure
Rules of Construction, General ............................................. Chapter 12
12.1 General
12.2 Time to which a will refers
12.3 Technical words
12.4 Time when law applicable
12.5 Interpretation of legislation and intent of testator
12.6 Presumption against intestacy
12.7 Interpretation of words
12.8 Omissions
12.9 Error in describing property or persons
12.10 Precatory words (request or wish)
12.11 Evidence, armchair rule
12.12 Invalid directions
12.13 General v. particular intention; Cy-près doctrine
12.14 Extrinsic evidence
Construction, Persons Entitled to Take
................................. Chapter 13
13.1 General
13.2 Class gifts
Construction, Quantity of Interest Taken ............................. Chapter 14
14.1 General
14.2 Absolute interests
14.3 Concurrent gifts, per capita or per stirpes
14.4 Life interests
14.5 Concurrent gifts, joint tenancy or tenants in common
14.6 Residue, what constitutes
Devolution of Estates, General .............................................. Chapter 15
15.1 Intestate Succession
15.2 Intestacy v. inclusion in residue
15.3 Partial Intestacy
15.4 Bars to inheritance, public policy
Protection of Testator’s Family
............................................. Chapter 16
16.1 General, statutory provision
Legal Research Guide to Wills and Succession: Introduction
Scope of this guide
Legal research is the process of finding a case, statute, regulation, text,
etc., that is relevant to a legal issue.
How does a lawyer resolve a legal issue? First, the lawyer must identify
the issue. The issue can, in many cases, be resolved by finding a binding case (a
precedent) or a relevant statute or regulation. Case law and statutes and
regulations are referred to as primary sources of the law.
This legal research guide is meant to provide instruction on how to find
cases that are relevant to an issue in the law of wills and succession. This is not a
guide to finding relevant statutes or regulations. The concepts of jurisdiction and
stare decisis are not discussed in this guide.
Introduction
This guide contains some of the first principles of the law of Wills and
Succession.
Each section refers to a principle and to cases that apply the principle. At
the end of each section is one of Maritime Law Book’s key numbers that can be
used to search for additional cases that apply the principle - search in print law
reports or at www.mlb.nb.ca. A key number can be used to do a computer search
of a single province or to search simultaneously every common law jurisdiction in
Canada. The MLB key numbers set out below are preceded by the words "Search
aid".
The MLB key numbers are useful because a point of law is always
assigned the same key number by MLB editors. For example, the key number
Wills Topic 1704 is assigned to all cases that address the question of what
constitutes undue influence (see Chapter 5). A list of MLB key numbers is found
in any recent MLB digest (a digest covers 10 volumes in any report series) and at
www.mlb.nb.ca. To generate a key number list of cases, at www.mlb.nb.ca click
on "Key Number Search", click on a title, such as Wills, and then click on the key
number.
See Appendix A for a complete list of all the key numbers assigned by
MLB editors to headings in the topic Wills.
Appendix A also includes under each key number a list of cases that have
been assigned the key number. Appendix B is a list of key numbers and cases for
the topic Perpetuities.
The principles or rules stated in this booklet should always be checked
against the relevant provincial statutes (e.g. Wills Act, Devolution of Estates Act,
Dependents Relief Act, Family Relief Act, Maritial Property Act, etc).
The language of wills - common terms defined
Accumulations -
adding income of a fund to the principal and preventing its
expenditure. See Chapter 9.7.
Attestation - the act of witnessing an instrument in writing.
Beneficiary - one who will benefit from a transfer of property.
Codicil - a supplement to a will, containing an addition, modification, etc., of
something in the will.
Cy-prés - as near as possible.
Donor - one who makes a gift.
Donee - one to whom a gift is made.
Estate - the total property owned by a deceased person prior to the distribution of
that property in accordance with the terms of a will.
Executor/executrix - a person appointed by a testator to carry out the directions
in a will.
Holograph -
a will written entirely by a testator in his own hand and not
witnessed.
Intestate - to die without a will.
Lapse - the failure of a gift in a will to vest because of the death of the donee
prior to the death of the testator.
Legacy - the disposition of personalty by will; a bequest.
Legatee - the person to whom a gift in a will is given.
Perpetuity - continuing forever. See Chapter 9.7.
Probate - a court procedure by which a will is proved to be valid or invalid.
Residue - the surplus of a testator’s estate remaining after all debts and gifts are
discharged.
Surrogate court - the name given to a court in some jurisdictions with similar
jurisdiction to that of a Probate court.
Testament - the latin word for will.
Testator/testatrix - the person who makes or has made a will.
Vested - having the character of absolute ownership; not contingent.
Will - an instrument that disposes of property to take effect on death. See
Chapter 2.1.
Chapter 1 - What is a will?
1.1 Why make a will?
A person who owns property may want to name persons to receive the
property after the owner’s death. A will is the document in which those persons
are named, and those persons are called beneficiaries. A will may be made wholly
in the testator’s own handwriting (a holograph will) but most persons engage a
lawyer to prepare a will. See Testamentary Instruments, chapter 2.
1.2 Capacity to make a will
Any adult may make a will. In many provinces you must be age 19 to
make a valid will unless the testator is married or is a member of the armed
forces. Also a testator must be mentally competent in order to make a valid will.
See Testamentary Capacity, chapter 3.
1.3 Formalities required to make a will
A statute, usually the Wills Act, requires that a will must meet certain
formalities such as being witnessed. See Preparation and Execution, chapter 5,
below.
1.4 The Executor
In a will the testator can name the person to be responsible for carrying
out the testator’s wishes, and that person is called an executor. For small estates
the executor is usually a trusted family member or friend. Institutional executors
may be difficult to remove or change. A trusted family member as executor can
be instructed to retain and change lawyers, accountants, and institutions as
required.
In the absence of a trusted spouse or trusted family friend, a corporate
executor may be a prudent appointment.
A will should also name an alternate executor to act in case the executor
is unwilling or unable to act.
1.5 Change or Revocation of a will
A will can be revoked or cancelled at any time prior to death, as long as
the testator is mentally competent at the time of revocation. See Revocation,
chapter 7.
A will should be reviewed periodically or whenever there is a change in
the testator’s financial or family status.
1.6 Intestate Succession
If a person dies without a will, the person is said to have died intestate.
The property of an intestate is distributed according to rules set out in a statute,
such as a Devolution of Estates Act. See Devolution of Estates, chapter 16.
1.7 Marital Property Legislation
Legislation respecting marital property may affect a donee’s property
rights under a will or on an intestacy. The Marital Property Act, S.N.B. 1980, c.
M-1.1, s. 4(4) provides that a spouse’s right to have marital property divided in
equal parts, supercedes any bequest contained in a will or any claim on an
intestacy.
1.8 Protection of Testator’s Family
A testator’s freedom to dispose of property is limited by legislation that
requires a testator to provide for the maintenance and support of dependents. See
chapter 16.
1.9 Living wills
A person should consider making a "living will" that names persons who
can act on behalf of the person respecting medical care and treatment if for some
reason the person is unable to act prior to death. Such authority can be included in
a power of attorney. In some provinces such as Alberta a person can make a
written personal directive that can include instructions respecting medical care.
The phrase "living will" is not a legal term in Canada. But it is used to describe the
legal directives each province sanctions that deal with your medical care wishes
should you be unable to communicate them.
Chapter 2 - Testamentary Instruments
2.1 Wills
The well known phrase "Last Will and Testament" refers to a
testamentary disposition. The word "will" is English and the word "testament" is
Latin. Today if the word "will" is used, the word "testament" is superfluous. See
The Language of the Law (1963) by David Mellinkoff at page 331.
What is a testamentary disposition? In short it is a will. And a will is an
instrument by which a person makes a disposition of property to take effect at the
time of death (see Black’s Law Dictionary, 6th ed., page 1598).
In Miskew Estate v. Hughes (1986), 71 A.R. 316, the Alberta Court of
Appeal stated at para. 11:
A document will be testamentary and admissible to
Probate if it meets three tests:
(a) does it satisfy the legal formalities?
(b) does it contain a disposition intended to
take effect upon death? and
(c) did the testamentary intention continue to
the time of death?
Search aid - MLB Key No. - Wills Topic 4 is assigned to cases that
include an issue of what constitutes a testamentary disposition. See
www.mlb.nb.ca and Appendix A for a list of cases that dealt with this issue.
Note that testamentary intention is required for a valid will. See
Preparation and Execution, chapter 5, below and see cases under MLB Key No. -
Wills Topic 14. This key number is assigned to cases that include an issue of
what constitutes testamentary intention. See www.mlb.nb.ca and Appendix A for
a list of cases that dealt with this issue.
2.2 Codicils
A codicil is a supplement to a will and may add or revoke provisions in
the will. A codicil must be executed with the formalities required of the original
will - see Legal Formalities below. A codicil is part of the will and the will and the
codicils make but one testament.
2.3 Conditional wills
A conditional will is one which depends on the occurrence of some
uncertain event. If the testator intends to dispose of his property in case the event
happens, the gift is conditional. In the case of Schullman, Re (1984), 32 Sask.R.
74 (Q.B.) the headnote stated in part:
In 1975 the testator executed a will that stated ". . . I am getting
heart trouble . . . if I die by morning my will is . . .". The
testator did not die until 1983 when he was killed in an accident.
The court held that the will was not conditional and admitted it
to Probate.
Search aid - MLB Key No. - Wills Topic 31 is assigned to cases that
include an issue of what constitutes a conditional will. See www.mlb.nb.ca and
Appendix A for a list of cases that dealt with this issue.
2.4 Incorporation by reference
It is possible for a will to refer to another document, and that the
document referred to, will become a part of the will. Such a reference is called
incorporation by reference. The elements of incorporation by reference are:
In addition to the requirement that the document intended to be
incorporated must be an existing document and not one that is to
come into existence at a future date (which may be called the
first condition for the operation of the doctrine), there are two
other conditions required. The second of these three conditions
is that the document must be referred to in the will; the third
condition is that the reference in the will must be sufficient to
identify the document. See Tucker Estate, Re (1993), 126
N.S.R.(2d) 201; 352 A.P.R. 201 (Probate Ct.), para. 14.
Search aid - MLB Key No. - Wills Topic 8 is assigned to cases that
include an issue of what constitutes incorporation by reference. See
www.mlb.nb.ca and Appendix A for a list of cases that dealt with this issue.
2.5 Legal formalities, general
Generally, a will to be valid must be signed by the testator in the presence
of two attesting witnesses. See Preparation and Execution, chapter 5, below.
2.6 Wills by military
Special provisions are made by statute to accommodate persons who
make a will while in military service. Sometimes the validity of an armed forces
member’s will depends on whether the person was on "actual military service".
See Wheatley Estate, Re (1984), 95 N.S.R.(2d) 66; 251 A.P.R. 66 (Probate Ct.)
which includes a history of these special legislative provisions at para. 4.
Search aid - MLB Key No. - Wills Topic 55 is assigned to cases that
interpret the phrase "actual military service". See www.mlb.nb.ca and Appendix A
for a list of cases that dealt with this issue.
2.7 Holograph wills
A holograph will is written entirely by the testator in his own hand and not
witnessed.
A holograph will is governed by provincial legislation, for example, s. 6 of
the Wills Act, R.S.N.B. 1973, c. W-9 states:
A testator may make a valid will wholly by his own handwriting
and signature, without formality, and without the presence,
attestation or signature of a witness.
When a testator combines his handwriting with a printed will form that is
not witnessed, the courts have had to rule on the validity of the alleged holograph
will. See Carr Estate, Re (1990), 112 N.B.R.(2d) 151; 281 A.P.R. 151 (Probate
Ct.).
Search aid - MLB Key No. - Wills Topic 62 is assigned to cases that
include an issue of what constitutes a holograph will. See www.mlb.nb.ca and
Appendix A for a list of cases that dealt with this issue.
2.8 Successive Wills
An otherwise valid will may be rendered invalid by the making of a
second will that is inconsistent with the first will. See Kavanagh’s Will, Re
(1992), 98 Nfld. & P.E.I.R. 165; 311 A.P.R. 165 (Nfld. S.C.).
Search aid - MLB Key No. - Wills Topic 83 is assigned to cases that
include an issue of what is the effect of a second will. See www.mlb.nb.ca and
Appendix A for a list of cases that dealt with this issue.
2.9 Mutual Wills
Mutual wills are the separate wills of two persons which are reciprocal in
their provisions. The effect of such wills is stated in O’Connell Estate, Re
(1980), 44 N.S.R.(2d) 181; 83 A.P.R. 181 (Probate Ct.), and at para. 19 the court
stated:
I shall dispose first of all with the legal effect of the mutual wills.
It is clear beyond question that the mere making of these mutual
wills does not effect any permanent change in the rights and
obligations of the makers for by the English common law a will,
by its very nature, is always revocable and, during the joint lives
of the testators, each is free to alter his or her will. It is only
upon the death of one of the makers who dies without having
altered his or her mutual will that the rights of the survivor to
alter his or her mutual will may be compromised (cf. e.g., Gray
v. Perpetual Trustee Co. Ltd., [1928] A.C. 391; [1928] All
E.R. Rep. 758).
Search aid - MLB Key No. - Wills Topic 92 is assigned to cases that
consider the effect of mutual wills. See www.mlb.nb.ca and Appendix A for a list
of cases that dealt with this issue.
2.10 Power to designate a beneficiary outside a will
There may be circumstances where a testator may designate a beneficiary
outside his/her will. This power is usually based on a statute. In McGrath v.
Nadeau (1994), 153 N.B.R.(2d) 141; 392 A.P.R. 141 (T.D.) the headnote states:
This application raised the issue of whether a beneficiary card
signed by a deceased under the provisions of the Credit Unions
Act took precedence over the provisions of her will.
The New Brunswick Court of Queen's Bench, Trial Division,
held that the beneficiary card took precedence over the
provisions of the will.
Search aid - MLB Key No. - Wills Topic 98 is assigned to cases that
consider the designation of a beneficiary outside of a will. See www.mlb.nb.ca
and Appendix A for a list of cases that dealt with this issue.
Chapter 3 - Testamentary Capacity
3.1 General Principles
The caselaw states that the testator must possess a soundness of mind.
Halsbury’s Laws of England, ²nd Ed., vol. 34, p. 37, states "It is necessary for
the validity of a will that the testator should be of sound mind, memory, and
understanding, words which time out of mind have been held to mean sound
disposing mind, and to import sufficient capacity to deal with and appreciate the
various dispositions of property to which the testator is about to affix his signature
. . .".
A testator may have testamentary capacity even though suffering from
Alzheimer’s disease - see Stevens v. Crawford (2001), 281 A.R. 201; 248
W.A.C. 201 (C.A.).
A testator was held to lack the necessary capacity where he suffered
from delusions - see Fuller Estate v. Fuller (2004), 197 B.C.A.C. 245; 323
W.A.C. 245 (C.A.).
Search aid - MLB Key No. - Wills Topic 302 is assigned to cases that
include an issue of what constitutes testamentary capacity. Wills Topic 405 is
assigned to cases that include an issue of what constitutes a mental disability. See
www.mlb.nb.ca and Appendix A for a list of cases that dealt with these issues.
3.2 Presumption of capacity
The New Brunswick Court of Appeal stated that "there is a presumption
of testamentary capacity ... It is only where the trial judge accepts that there are
suspicious circumstances that proof of capacity will have to be made on a balance
of probabilities." See Clark Estate, Re (1996), 180 N.B.R.(2d) 379; 458 A.P.R.
379 (C.A.).
Search aid - MLB. Key No. - Wills Topic 534 is assigned to cases that
consider the onus of proof of testamentary capacity. See www.mlb.nb.ca and
Appendix A for a list of cases that dealt with this issue.
Chapter 4 - Donees
4.1 Generally
A donee is the person to whom a gift or bequest is made. The person
who gives the property is called the donor.
4.2 Capacity to benefit
Public policy may operate to render invalid a bequest under a will.
See Benson Estate, Re (1998), 231 A.R. 76 (Surr. Ct.) at para. 14:
"The forfeiture rule. A sane person who commits murder is
debarred by public policy from taking any benefit under the will
or intestacy of his victim. ... The forfeiture rule has sometimes
been applied where the killer is convicted of manslaughter by
reasons of diminished responsibility, but it does not apply if the
killer was insane - an insane killer may take a benefit under the
will or intestacy of his victim." Clark and Ross Martyn,
Theobald on Wills, 15th Ed., 1993, Sweet and Maxwell, p.
146.
Search aid - MLB Key No. - Wills Topic 1055 is assigned to cases that
consider the capacity to benefit and the forfeiture rule. See www.mlb.nb.ca and
Appendix A for a list of cases that dealt with this issue.
4.3 Disqualification of donees
A beneficiary under a will may be disqualified if the beneficiary is a
witness to the signing of the will. See Campbell Estate, Re (1990), 90 Sask.R. 3
(Sur. Ct.), where the Saskatchewan Surrogate Court declared invalid bequests to
beneficiaries who witnessed the will. See also Pauliuk v. Pauliuk Estate (1986),
73 A.R. 314 (Q.B.) where the court declared invalid a bequest to the son of the
testator where the son was a witness to the execution of the will.
Search aid - MLB Key No. - Wills Topic 1083 is assigned to cases
where the donee was a witness to the execution of a will. See www.mlb.nb.ca
and Appendix A for a list of cases that dealt with this issue.
4.4 Identification of donees
Careful drafting is required to identify donees so as to avoid the costs of
litigation. See Zive Estate, Re (1976), 23 N.S.R.(2d) 477; 32 A.P.R. 477 (T.D.)
where the court was asked to determine who was included in the phrase
"members of my family". The court held that the testator intended to include
nephews and nieces in the phrase "members of my family".
Where the description of the donee is vague the gift may be void for
uncertainty and the gift would devolve as on an intestacy. See Olson Estate, Re
(1988), 70 Sask.R. 240 (C.A.).
Search aid
- MLB Key No. - Wills Topic 1403 is assigned to cases
where the description of the donee is vague. See www.mlb.nb.ca and Appendix A
for a list of cases that dealt with this issue.
Chapter 5 - Preparation and Execution
5.1 Generally
There is a general requirement that a testator know and approve the
contents of a will. So where the testator is blind, special modes of proof may be
required where the will is probated. See Brewster Estate, Re (1989), 75 Sask.R.
279 (Q.B.).
Search aid - MLB Key No. - Wills Topic 1504 is assigned to cases that
consider whether the testator had knowledge of the contents of a will. See
www.mlb.nb.ca and Appendix A for a list of cases that dealt with this issue.
5.2 Signature
A will must be signed by the testator. An unsigned will does not meet the
various statutory requirements and is invalid. See Chersak Estate, Re (1955), 99
Man.R.(2d) 169 (Q.B.).
Search aid - MLB Key No. - Wills Topic 1531 is assigned to cases that
consider the requirement of a signature by the testator. See www.mlb.nb.ca and
Appendix A for a list of cases that dealt with this issue.
5.3 Signature, What constitutes
Due to a physical infirmity a testator was only able to place marks on his
will. A court held that such marks constituted a signature for purposes of the New
Brunswick Wills Act. See Bradshaw Estate, Re (1988), 90 N.B.R.(2d) 194; 228
A.P.R. 194 (Probate Ct.).
Search aid - MLB Key No. - Wills Topic 1538 is assigned to cases that
consider what constitutes a signature by the testator. See www.mlb.nb.ca and
Appendix A for a list of cases that dealt with this issue.
5.4 Attestation
Attestation is the act of witnessing an instrument in writing at the request
of the person signing the instrument. Provincial legislation may require that a will
be signed by the testator in the presence of two witnesses. There is a presumption
that a will was duly executed and witnessed by persons who knew the statutory
requirements, absent evidence to the contrary. See Beaudoin Estate v. Taylor
(1999), 8 B.C.T.C. 302 (S.C.).
Search aid - MLB Key No. - Wills Topic 1556 is assigned to cases that
consider the requirement of attestation. See www.mlb.nb.ca and Appendix A for a
list of cases that dealt with this issue.
5.5 Curing of irregularity
A court in some circumstances has the power to declare valid a will that
is not signed or witnessed as required by the Wills Act. See Felsing Estate, Re
(2001), 205 Sask.R. 143 (Q.B.).
Search aid - MLB Key No. - Wills Topic 1573 is assigned to cases that
consider the curing of an irregularity. See www.mlb.nb.ca and Appendix A for a
list of cases that dealt with this issue.
5.6 Undue Influence, What constitutes
A donee who has obtained a gift by fraud or undue influence is liable to
have the gift set aside (Halsbury’s Laws of England, 2nd Ed., vol. 34, page 45).
In Nickerson Estate, Re (1996), 155 N.S.R.(2d) 289; 457 A.P.R. 289 (Probate
Ct.) the court, at paragraph 16, referred to a definition of undue influence as
follows:.
Thomas Feeney in his text, The Canadian Law of Wills, (3rd
Ed.1987) states at p. 42:
"The burden of proof of undue influence is on
the attackers of the will to prove that the mind
of the testator was overborne by pressure
exerted by another person. It is not enough to
show mere persuasion; the influence exerted
on the testator must amount to coercion to be
undue influence. Coercion has been defined to
mean that the testator has been put in such a
condition of mind that if he could speak his
wishes to the last he would say 'this is not my
wish but I must do it'."
Search aid - MLB Key No. - Wills Topic 1704 is assigned to cases that
consider the question of what constitutes undue influence. See www.mlb.nb.ca
and Appendix A for a list of cases that dealt with this issue.
5.7 Alterations and Deletions
It is well established law that unexecuted interlineations or interpolations
made after the execution of the will are of no effect. See Hodder Estate, Re
(2002), 210 Nfld. & P.E.I.R. 87; 630 A.P.R. 87 (Nfld. T.D.) at para. 15.
Thomas Feeney in his text, The Canadian Law of Wills, (3rd Ed., 1987)
states at p. 130:
"If, after executing a formal will, the testator desires to alter it in
some manner, the alteration . . . must itself be signed and
attested in the manner prescribed for a formal will. Furthermore,
there is a presumption that a will was altered after execution and
not before."
Search aid - MLB Key No. - Wills Topic 1744 is assigned to cases that
consider the validity of alterations and deletions to a will. See www.mlb.nb.ca and
Appendix A for a list of cases that dealt with this issue.
5.8 Presumption of Due Execution
"If a will purports to be properly executed and attested, and there is no
doubt that it is the testator's will, the court will assume that it was properly
executed and attested, though the evidence of the attesting witnesses as to the
execution may not be satisfactory." See Theobald on Wills, 13th Ed., para. 274.
Search aid - MLB Key No. - Wills Topic 1884 is assigned to cases that
consider the presumption of due execution. See www.mlb.nb.ca and Appendix A
for a list of cases that dealt with this issue.
Chapter 6 - Revocation
6.1 Generally
While provincial statutes vary, generally a will is revoked:
- by a later valid will;
- by a later writing declaring an intention to revoke and made
in accordance with the relevant statute;
- by burning, tearing or otherwise destroying the will by the
testator;
- by marriage of the testator.
6.2 Revocation by subsequent will
A subsequent will must completely dispose of the testator’s property in
order to revoke a previously executed will or the subsequent will must express an
intention to revoke the prior will. See Comerford Estate, Re (1980), 8
Man.R.(2d) 1 (Sur. Ct.).
Search aid - MLB Key No. - Wills Topic 2376 is assigned to cases that
consider whether a will was revoked by a subsequent will. See www.mlb.nb.ca
and Appendix A for a list of cases that dealt with this issue.
6.3 Revocation by act of testator
The deceased's original will was accidentally destroyed in a fire
at his lawyer's office. The Nova Scotia Court of Appeal held that
the original will was not revoked by its destruction in the fire.
See Theriault Estate, Re (1997), 157 N.S.R.(2d) 398; 462
A.P.R. 398 (C.A.).
In 1980 a testator instructed her accountant to help her prepare a
new will and she burned a 1973 will in the presence of the
accountant. A new will was prepared, but it could not be proved
that the woman executed it. The Newfoundland Supreme Court,
Trial Division, held that the 1973 will was revoked by burning,
notwithstanding that the woman intended to make a new will,
but did not. See Hennissey’s Will, Re (1984), 46 Nfld. &
P.E.I.R. 91; 135 A.P.R. 91 (Nfld. T.D.).
Search aid - MLB Key No. - Wills Topic 2336 is assigned to cases that
consider the revocation of a will by act of the testator. See www.mlb.nb.ca and
Appendix A for a list of cases that dealt with this issue.
A husband and wife separated in 1996 after 27 years' marriage.
The husband's 1987 will named his wife the sole beneficiary. A
domestic contract purportedly released all claims the wife might
have against the husband's estate. The husband died in 1998
without revoking the 1987 will or making a new will. The
executors of the husband's estate applied for directions as to
whether the ex-wife continued to take under the 1987 will or
whether the will was invalidated by the divorce and/or the
domestic contract.
The New Brunswick Court of Queen's Bench, Trial Division,
held that the 1987 bequest was not nullified by either the
domestic contract or the divorce. See Eccleston Estate, Re
(1999), 221 N.B.R.(2d) 295; 567 A.P.R. 295 (T.D.).
Search aid - MLB Key No. - Wills Topic 2335 is assigned to cases that
consider whether an agreement revoked a will. See www.mlb.nb.ca and Appendix
A for a list of cases that dealt with this issue.
6.4 Presumption of revocation where will is lost
The deceased executed a will in 1983. The deceased died in
February 1985. Following his death neither his will nor the
strong box he purportedly kept it in could be found. The
executrix applied to the court for proof in solemn form of a
copy of a 1983 document as the last will of the deceased. The
New Brunswick Probate Court granted the application. The
court found that there was no intention by the testator to revoke
his will or change any dispositions in the will and that the will
was missing because of the disappearance of the metal box
where it was kept and not because of any intention of the
testator. See Quinlan’s Will, Re (1985), 63 N.B.R.(2d) 429;
164 A.P.R. 429 (Probate Ct.).
Search aid - MLB Key No. - Wills Topic 2342 is assigned to cases that
consider whether a will was revoked where the will is lost. See www.mlb.nb.ca
and Appendix A for a list of cases that dealt with this issue.
Chapter 7 - Revival
7.1 General
Generally, a revoked will can be revived by re-execution and showing an
intention to revive it. Evidence must be presented that shows with reasonable
certainty an intention to revive the will. See MacKinlay Estate, Re (1993), 122
N.S.R.(2d) 354; 338 A.P.R. 354 (C.A.).
Search aid - MLB Key No. - Wills Topic 2406 is assigned to cases that
consider whether a will was revived. See www.mlb.nb.ca and Appendix A for a
list of cases that dealt with this issue.
Chapter 8 - Gifts
8.1 Generally
The fundamental principle whereby the courts are guided in the
interpretation of testamentary documents, is that effect must be given to the
testator's intention, ascertainable from the expressed language of the instrument. If
it is not possible to determine the intention in this way, then recourse may be had
to evidence regarding the situation of the testator at the time the will was made.
See DiMambro Estate, Re, [2002] O.T.C. 900 (S.C.), para. 17.
A testator bequeathed his house and its contents. The
Saskatchewan Surrogate Court held that an automobile found
stored in the garage of the house was included in the bequest.
But the court held that uncashed cheques and other choses in
action found in the house were not included in the bequest and
were part of the residue of the estate. See Dixon Estate, Re
(1990), 82 Sask.R. 241 (Sur. Ct.).
Search Aid - MLB Key No. - Wills Topic 3106 is assigned to cases that
consider what constitutes a gift. See www.mlb.nb.ca and Appendix A for a list of
cases that dealt with this issue.
8.2 Accretions
Accretions to property, such as company shares, generally follow a
bequest of the shares. See Palmer Estate, Re (1985), 69 N.S.R.(2d) 384; 163
A.P.R. 384 (T.D.)
Search aid - MLB Key No. - Wills Topic 3109 is assigned to cases that
consider whether the testator made a gift of accretions. See www.mlb.nb.ca and
Appendix A for a list of cases that dealt with this issue.
8.3 Income from property
A testator bequeathed his business to his nephew. The Manitoba
Court of Queen's Bench held that the nephew was entitled to the
income from the business from the date of the testator's death.
See Dearden’s Will, Re (1987), 46 Man.R.(2d) 222 (Q.B.),
para. 71.
Search aid - MLB Key No. - Wills Topic 3110 is assigned to cases that
consider whether the testator made a gift of income from property. See
www.mlb.nb.ca and Appendix A for a list of cases that dealt with this issue.
8.4 Interest on legacies
The general rule is that interest is payable on a pecuniary legacy beginning
one year after the testator's death. An executor is allowed one year from the date
of death to settle the affairs of the estate. See Fraserview v. Gilmore Estate,
[2003] B.C.T.C. 1920 (S.C.).
In Widdifield on Executors and Trustees, 6th ed. (Toronto: Carswell,
2002) at 5-5:
"(a) One Year Rule
Subject to the exceptions hereinafter mentioned, where no
special time is fixed for the payment of a legacy, it carries
interest only from the expiration of a year from the testator's
death, and this whether the legacy is vested or not. The executor
is allowed one year from the testator's death to get in the assets
and settle the affairs of the estate; at the end of that time the
court, for the sake of general convenience, presumes the estate
to have been reduced into possession, and interest then becomes
payable, and is given for delay in payment . . ."
Search aid - MLB Key No. - Wills Topic 3112 is assigned to cases that
consider whether the testator made a gift of interest on legacies. See
www.mlb.nb.ca and Appendix A for a list of cases that dealt with this issue.
Chapter 9 - Conditional Gifts
9.1 Generally
Where the testator has clearly attached conditions or obligations to his
gifts, his expressed intention is paramount. But where the will is not clear, it is a
settled rule of construction that the words are not construed as importing a
condition, if they are fairly capable of another interpretation. See Halsbury’s
Laws of England, ²nd Ed., vol. 34, para. 412.
9.2 Public policy
A condition may be invalid if it is illegal or contrary to public policy or
uncertain in its meaning or its operation. See Woods Estate v. Woods, [2005]
O.T.C. 49 (S.C.), para. 32.
Search aid - MLB Key No. - Wills Topic 8018 is assigned to cases that
consider the effect of public policy on a conditional gift. See www.mlb.nb.ca and
Appendix A for a list of cases that dealt with this issue.
9.3 Conditions precedent
A testatrix devised a property to his daughter absolutely, but
provided that, if the property was sold during the daughter’s
lifetime, half the proceeds of sale were to go to his son. The
property passed to the daughter and was unsold when the son
died. The Newfoundland Supreme Court, Trial Division, held
that the sale was a condition precedent to the gift to the son and
that the gift lapsed when the son died before the sale. See
Gosse’s Will, Re (1976), 14 Nfld. & P.E.I.R. 188; 33 A.P.R.
188 (Nfld. T.D.).
Search aid - MLB Key No. - Wills Topic 8006 is assigned to cases that
consider what constitutes a condition precedent. See www.mlb.nb.ca and
Appendix A for a list of cases that dealt with this issue.
9.4 Conditions precedent and subsequent
"It may, however, be noticed that when the condition requires
something to be done which will take time, the argument is in
favour of construing it as a condition subsequent because the
law leans in favour of early vesting. On the other hand, a
condition which involves anything in the nature of consideration
is in general a condition precedent. If the language of the will
leaves it in doubt whether the condition is intended to be
precedent or subsequent, the court prefers the latter." See
Theobald on Wills (14th Ed., 1982), page 623.
A testatrix gave her husband her realty, but stated that he could
not dispose of it during the testatrix's sister's lifetime, because if
the husband predeceased the sister, the property would become
the sister's. The Nova Scotia Supreme Court, Trial Division, held
that the husband's interest was conditional on the sister
predeceasing him. See Cook v. Nova Scotia (1982), 53
N.S.R.(2d) 87; 109 A.P.R. 87 (T.D.).
Search aid - MLB Key No. - Wills Topic 8015 is assigned to cases that
consider what constitutes a condition subsequent. See www.mlb.nb.ca and
Appendix A for a list of cases that dealt with this issue.
Search aid - MLB Key No. - Wills Topic 8006 is assigned to cases that
consider what constitutes a condition precedent. See www.mlb.nb.ca and
Appendix A for a list of cases that dealt with this issue.
9.5 Vested defined
Fixed; accrued; settled; absolute. Having the character or given the rights
of absolute ownership; not contingent. . . . See Black’s Law Dictionary, 6th Ed.,
page 1563.
9.6 Vesting, contingent gifts
A testator directed that the income from his estate be paid to his
daughter until she reached the age of 45 at which time the capital
was to be paid to her; provided that if the daughter died before
age 45 the capital was to be paid to a granddaughter. The
Saskatchewan Court of Appeal dismissed the daughter's
application for an order for immediate vesting of the gift to the
daughter. The court held that the gift to the daughter was
contingent and was not absolute. See Little v. Salterio Estate
(1981), 14 Sask.R. 18 (C.A.).
Search aid - MLB Key No. - Wills Topic 8060 is assigned to cases that
consider whether a gift is contingent. See www.mlb.nb.ca and Appendix A for a
list of cases that dealt with this issue.
9.7 Rules against remoteness of vesting
Rule against perpetuities
"Perpetuity, unlimited duration. ... It is odious in law, destructive to the
commonwealth, and an impediment to commerce, by preventing the wholesome
circulation of property" The Dictionary of English Law by Earl Jowitt (1959),
page 1333.
The rule against perpetuities or the doctrine of remoteness is that the
vesting of property cannot be postponed ... beyond any number of lives in being
... and 21 years from the death of the surviving life ... Duke of Norfolk’s Case
(1681), 3 Ch. Ca. 1.
Search aid - MLB Key No. - Perpetuities Topic 700 is assigned to cases
that consider the duration of a limitation or a period of vesting. See
www.mlb.nb.ca and Appendix B for a list of cases that dealt with this issue.
Rule against accumulations
An accumulation arises when an income from a fund is added to the
capital.
The headnote in the case of Ball Estate v. Miller (1986), 52 Sask.R. 300
(Sur. Ct.) states:
Limits on accumulation of rent, profits or income - Application
of legislation - The Accumulations Act 1800 (Imp.), 39 & 40
Geo. 3, c. 98 - limited the period of accumulation of profits and
rents to a period of 21 years following the death of the testator -
The Saskatchewan Surrogate Court held that the Act was in
force in Saskatchewan - See paragraphs 8 to 23.
Search aid - MLB Key No. - Perpetuities Topic 7025 is assigned to
cases that consider the limits on accumulation of rent, profits or income. See
www.mlb.nb.ca and Appendix B for a list of cases that dealt with this issue.
Chapter 10 - Lapse
10.1 Generally
Generally, when a person to whom property has been devised or
bequeathed dies before the testator, the devise or bequest fails or lapses, and the
property goes as if the gift had not been made. See The Dictionary of English
Law by Earl Jowitt (1959) at page 1059.
By his will, the testator left his entire estate to two friends. One friend
predeceased the testator. The issues raised by the administrator of the estate were
whether the gift to the deceased friend lapsed and who was entitled to the gift.
The Alberta Surrogate Court held that the testator did not intend the gift to lapse
and that the remaining beneficiary was entitled to the entire estate as a surviving
joint tenant. See Kolenic Estate, Re (1989), 93 A.R. 257 (Sur. Ct.).
Search aid - MLB Key No. - Wills Topic 4041 is assigned to cases that
consider whether a gift failed or lapsed. See www.mlb.nb.ca and Appendix A for
a list of cases that dealt with this issue.
10.2 Devolution of lapsed gift
A will equally divided the testator's estate amongst her eight children and
one grandchild. One of the witnesses to the execution of the will was the spouse
of a beneficiary (a daughter). Section 12(1) of the Wills Act rendered the bequest
to the daughter void. The co-executors of the estate applied for directions as to
the disposition of the daughter's interest in the estate. The New Brunswick Court
of Queen's Bench, Trial Division, held that the daughter's one-ninth share of the
estate was to be divided as on an intestacy. Accordingly, all eight children,
including the daughter, equally shared the one-ninth share - See Brown Estate v.
Bon (2003), 263 N.B.R.(2d) 287; 689 A.P.R. 287 (T.D.) para. 118.
A testatrix bequeathed $10,000 to a niece. The niece predeceased the
testatrix. The trustee applied for interpretation of the will to dispose of niece's
interest. The Saskatchewan Court of Queen's Bench held that s. 32 of the Wills
Act did not apply to save the gift because the beneficiary was only a niece by
marriage. Therefore, the gift lapsed, and fell into the residue and would pass
according to law of intestacy. See Pearson Estate, Re (1989), 81 Sask.R. 221
(Q.B.).
Search aid - MLB Key No. - Wills Topic 4046 is assigned to cases that
consider the devolution of a failed or lapsed gift. See www.mlb.nb.ca and
Appendix A for a list of cases that dealt with this issue.
10.3 Tracing (exception from lapse)
A testatrix provided in her will that shares held jointly by herself and her
husband would go to her daughter and then to her daughter's children, in the event
her husband predeceased her. The husband predeceased her. It was argued at trial
that the gift lapsed because at the time of her death there were no shares held
jointly by herself and her husband. Upon the death of the husband, his interest in
the jointly held shares passed to the wife. The Nova Scotia Supreme Court, Appeal
Division, found that the trial judge was correct in concluding that the gift was of
specific shares that could be traced in specie through splits and transfers to the
time of the testatrix's death and that the gift did not lapse. See Palmer v. Royal
Trust (1986), 73 N.S.R.(2d) 435; 176 A.P.R. 435 (C.A.).
Search aid
- MLB Key No. - Wills Topic 4047 is assigned to cases
where a gift did not lapse because the gift could be traced. See www.mlb.nb.ca
and Appendix A for a list of cases that dealt with this issue.
Chapter 11 - Failure of Gifts
11.1 Generally
A gift may fail for reasons personal to the donee, such as death of the
donee prior to the testator’s death. A gift may fail because the testator did not own
the gifted property. A gift may fail because the gift was deemed satisfied by
benefits conferred by the testator on the donee subsequent to the date of the will
(this is called an ademption). Also the donee may disclaim the gift.
11.2 Implied revocation, ademption
The British Columbia Court of Appeal stated that "The doctrine [of
ademption] applies as a matter of law, irrespective of the testator's intentions in
the matter, although his or her intentions are clearly relevant to the anterior
question of whether the gift in question is a 'specific' legacy (and therefore subject
to ademption), or a general one (not subject to ademption). The doctrine is also
subject to the qualification that even if the gift in question is a specific legacy, it
may be saved in some circumstances if the property has changed 'in name or
form only', and still forms part of the testator's property at the date of death.". See
Wood Estate, Re (2004), 203 B.C.A.C. 205; 332 W.A.C. 205 (C.A.).
A testator left his car to his granddaughter. The car was destroyed in a
car accident in which the testator died. The Nova Scotia Supreme Court held that
there was an ademption and that the insurance proceeds from the destruction of
the car should form part of the residue of the estate. See Phillips Estate, Re
(1995), 140 N.S.R.(2d) 213; 399 A.P.R. 213 (S.C.).
Search aid - MLB Key No. - Wills Topic 4146 is assigned to cases that
consider what constitutes an ademption. See www.mlb.nb.ca and Appendix A for
a list of cases that dealt with this issue.
11.3 Failure of Gift, Uncertainty
Gibson died testate in December 1994. Gibson in his will dated January
1960 made a specific legacy "to a bus driver of the Gray Coach Lines Limited
who has the best service record with his Company and the largest family at the
date of my death as certified by the Gray Coach Lines Limited .... ". The executor
of the estate applied to determine whether the gift failed for uncertainty. The
Ontario Superior Court held that the gift did not fail for lack of certainty,
notwithstanding the numerous corporate changes of Gray Coach Lines Limited
since 1960. See Gibson Estate v. Ashbury College Inc. (1999), 104 O.T.C. 305
(S.C.).
Search aid - MLB Key No. - Wills Topic 4248 is assigned to cases that
consider what constitutes uncertainty. See www.mlb.nb.ca and Appendix A for a
list of cases that dealt with this issue.
11.4 Failure of Gift, Impossibility
A testatrix made a residuary bequest for the establishment, construction
and maintenance of a home for the aged. At the time of distribution, the executor
believed that there were insufficient funds to carry out the testatrix's intention.
The New Brunswick Court of Queen's Bench, Trial Division, held that the bequest
did not fail for impossibility, because there was evidence that the testatrix's
intention could effectively be carried out, either by using mortgage funds for the
balance needed to establish a home or building an addition to an established home.
See McSweeney Estate, Re (1982), 41 N.B.R.(2d) 419; 107 A.P.R. 419 (T.D.).
Search aid - MLB Key No. - Wills Topic 4286 is assigned to cases that
consider what constitutes impossibility. See www.mlb.nb.ca and Appendix A for
a list of cases that dealt with this issue.
11.5 Failure of Gift, Repugnancy
The issue of repugnancy was stated by the Saskatchewan Surrogate
Court in Taylor Estate, Re (1982), 19 Sask.R. 361, at para. 42:
"[T]he cases in which a testator after apparently conferring a
benefit purports to deal with the property upon the death of the
person upon whom the first benefit is conferred fall into two
classes: first, those in which the later provision shows that the
first taker was not intended to take absolutely, but was intended
to have a life-estate only; and the second in which it was clear
that the first taker was intended to take absolutely, and,
therefore, the attempted gift over of all that might remain on the
death of the first taker was repugnant and void, and that in each
case the problem was to determine within which of the classes
the particular will under consideration fell ... ."
A testator gave land to his children subject to a life interest in the land to
his wife. The Saskatchewan Surrogate Court held that there was no repugnancy
between the gifts to the children and the wife's life interest. See Rezansoff, Re
(1985), 38 Sask.R. 170 (Sur. Ct.).
Search aid - MLB Key No. - Wills Topic 4325 is assigned to cases that
consider what constitutes a repugnancy. See www.mlb.nb.ca and Appendix A for
a list of cases that dealt with this issue.
11.6 Failure of gifts, Partial failure
In 1989, Ross Woodside made a will bequeathing his farm to his nephew
Mark Woodside, provided that Mark pay 50% of the farm's appraised value to
Kent, Blake and Ann Woodside. The will also contained a residuary clause. In
1993, Ross sold his farm to Mark for $115,000 payable on Ross' 65th birthday in
1995. Ross died in 1994. Mark paid the $115,000 into court pending directions.
The Prince Edward Island Supreme Court, Trial Division, held:
(1) that Ross' intention was to bequeath the farm to Mark and
also to bequeath 50% of the farm's appraised value to Kent,
Blake and Ann;
(2) that the bequest to Mark had been adeemed but not the
bequest to Kent, Blake and Ann;
(3) that the $115,000 was not part of the residue and was
payable to Kent, Blake and Ann.
See Woodside Estate, Re (1997), 157 Nfld. & P.E.I.R. 232; 486 A.P.R.
232 (P.E.I.T.D.).
Search aid
- MLB Key No. - Wills Topic 4203 is assigned to cases
where there is a partial failure of a gift. See www.mlb.nb.ca and Appendix A for a
list of cases that dealt with this issue.
Chapter 12 - Rules of Construction, General
12.1 General
"Leading principle of construction. The only principle of construction
which is applicable without qualification to all wills and overrides every other rule
of construction is that the testator's intention is collected from a consideration of
the whole will taken in connection with any evidence properly admissible, and the
meaning of the will and of every part of it is determined according to that
intention." (Emphasis added by Hunt, J.A.) See Christensen v. Martini (1999),
232 A.R. 339; 195 W.A.C. 339 (C.A.), para. 12.
Search aid - MLB Key No. - Wills Topic 5000 is assigned to cases that
consider the rule of construction to determine the intention of the testator. See
www.mlb.nb.ca and Appendix A for a list of cases that dealt with this issue.
12.2 Time to which a will refers
A testatrix became of unsound mind in 1979. She made her will in 1972
and died in 1984. The trial judge concluded that since the testatrix became
incompetent in 1979, the will must speak as of that time. The Nova Scotia
Supreme Court, Appeal Division, stated that s. 22 of the Wills Act stipulated that a
will must speak as of the death of a testator unless a contrary intention appeared;
the trial judge was wrong in concluding that will must speak as of the date the
testatrix became incompetent. See Palmer v. Royal Trust (1986), 73 N.S.R.(2d)
435; 176 A.P.R. 435 (C.A.).
Search aid - MLB Key No. - Wills Topic 5002 is assigned to cases that
consider the time to which a will refers. See www.mlb.nb.ca and Appendix A for
a list of cases that dealt with this issue.
12.3 Technical words
"If the will has been drawn by a lawyer, the court will assume that the
technical terms are used in their correct, technical, legal sense, unless it clearly
appears that they were intended to bear some other meaning. Conversely, if the
will is drawn by one who is not trained as a lawyer, it is more likely that the court
will assume that the will is written in layman's language and, accordingly, will give
the words their popular, rather than their technical, meaning." See Lyons Estate,
Re (1999), 16 B.C.T.C. 390 (S.C.), para. 11.
Search aid - MLB Key No. - Wills Topic 5006 is assigned to cases that
consider the construction of technical words. See www.mlb.nb.ca and Appendix
A for a list of cases that dealt with this issue.
12.4 Time when law applicable
The deceased's will left the remainder of his estate "to be divided equally
between my brothers and sisters ... ". Two claimants asserted that they were
children of a brother of the deceased who had predeceased him. Sections 40 and
41 of the Children's Law Act abolished the distinction between children born
inside and outside marriage, but the sections did not affect an instrument made
before those sections came into force on December 1, 1990. The Saskatchewan
Court of Queen's Bench held that while the deceased's will was executed before
December 1, 1990, pursuant to s. 24 of the Wills Act, the will was to be
construed as if it had been executed immediately before the testator's death on
August 23, 1997. Therefore, the claimants were included in the term "children" in
the will and were entitled to the brother's share of the estate. See Kurtz Estate,
Re (2000), 198 Sask.R. 116 (Q.B.).
Search aid - MLB Key No. - Wills Topic 5010 is assigned to cases that
consider the time when law is applicable. See www.mlb.nb.ca and Appendix A for
a list of cases that dealt with this issue.
12.5 Interpretation of legislation and intent of testator
"No legislation will be construed as thwarting the intention of a testator as
expressed in his will, unless the language clearly and unmistakably indicates that
the Legislature so intended and has effectively brought about that result." See Gee
Estate, Re (1988), 52 Man.R.(2d) 157 (Q.B.), para. 5.
Search aid - MLB Key No. - Wills Topic 5015 is assigned to cases that
consider legislation that conflicts with the intention of a testator. See
www.mlb.nb.ca and Appendix A for a list of cases that dealt with this issue.
12.6 Presumption against intestacy
"Where the construction of the will is doubtful, the Court acts on the
presumption that the testator did not intend to die either wholly or even partially
intestate, provided that on a fair and reasonable construction there is no ground
for a contrary conclusion". See Halsbury’s Laws of England, 2
nd
Ed., vol. 34,
para. 258.
Search aid - MLB Key No. - Wills Topic 5027 is assigned to cases that
consider the presumption against intestacy. See www.mlb.nb.ca and Appendix A
for a list of cases that dealt with this issue.
12.7 Interpretation of words
"There are certain rules of construction to which a judge ought to adhere,
viz.:
(1) to read the will without paying any attention to legal rules;
(2) to have regard not only to the whole of the clause which is in
question, but to the will as a whole, which forms the context to
the clause ...;
(3) to give effect, if possible, to all parts of the will and so to
construe the will that every word shall have effect, if some
meaning can be given to it and if such meaning is not contrary to
some intention plainly expressed in other parts of the will ...;
(4) When the judge thus determines the intention of the testator
he should inquire whether there is any rule of law which
prevents effect being given to it ...".
See Hordynsky Estate, Re (1983), 23 Sask.R. 196 (Q.B.), para. 6.
In Antoniuk Estate, Re (1982), 20 Sask.R. 293 (Sur. Ct.), para. 11, the
court stated: ".... in construing a will the duty of the court is to ascertain the
intention of the testator, which intention is to be collected from the whole will
taken together, and where there is ambiguity, the court is entitled to consider also
the circumstances surrounding and known to the testator at the time he made his
will".
Search aid - MLB Key No. - Wills Topic 5060 is assigned to cases that
consider the interpretation of words in a will. See www.mlb.nb.ca and Appendix
A for a list of cases that dealt with this issue.
12.8 Omissions
The residual clause of Farren's will, which was drafted by a lawyer in
1997, read: "I direct that my brother, James P. Farren shall have the use of my
home and contents during his life time. Should my said brother predecease me or
die within thirty (30) days of my death, then my estate is to be equally divided
between my nephew, James P. Farren Jr. and my grand nephew, William Royden
Chase, share and share alike". The residual clause did not dispose of the residue of
Farren's estate if her brother survived her by more than 30 days, which he did.
The New Brunswick Court of Queen's Bench, Trial Division, examined the
residual clause in the context of Farren's pattern of will making between 1993 and
1999 and found that she had intended to make a gift over of her residue to her
nephew and grandnephew named in the residual clause in equal shares. The court
concluded that in order to properly express Farren's intentions, the words "and
upon my brother's death in any event" should be added to the second sentence of
the residual clause. See Farren Estate, Re (2004), 279 N.B.R.(2d) 373 ;732
A.P.R. 373 (T.D.)
Search aid - MLB Key No. - Wills Topic 5105 is assigned to cases that
consider omissions in a will. See www.mlb.nb.ca and Appendix A for a list of
cases that dealt with this issue.
12.9 Error in describing property or persons
Donald Bergey sought an order to rectify his deceased uncle's will. The
issue was whether the residuary clause which left a share of the residue to "Mrs.
Donald Bergey", should be rectified either to delete the word "Mrs." or to change
"Mrs." to "Mr.", thereby making Donald Bergey the residuary beneficiary. The will
was made in 1982. The deceased's earlier 1979 will had named "Mr. Donald
Bergey" as the residuary beneficiary. The Manitoba Court of Queen's Bench
concluded on all of the evidence that the deceased did not intend to change his
beneficiary from Donald Bergey to Donald's wife and that the change resulted
from a typographical error. The court ordered the will rectified to show Mr.
Donald Bergey as the residuary beneficiary. See Bergey Estate, Re (1995), 103
Man.R.(2d) 202 (Q.B.).
A testator made a specific bequest of the proceeds from the sale of his
real property to named beneficiaries. He identified the monies as those which are
now invested in an "income investment certificate" with his bank. In fact, the sale
proceeds were invested in a "guaranteed investment certificate". The
Saskatchewan Surrogate Court held that the misnomer should not deprive the
beneficiaries of the bequest, because the intention of the testator was clear and the
monies were identifiable. See Babyn Estate, Re (1991), 95 Sask.R. 279 (Sur.
Ct.).
Search aid - MLB Key No. - Wills Topic 5124 is assigned to cases
where the will contains a misdescription of persons or property. See
www.mlb.nb.ca and Appendix A for a list of cases that dealt with this issue.
12.10 Precatory words (request or wish)
A testator left a trust for the maintenance and education of his infant
children. He expressed a "wish that my children be educated in private schools and
learn the French language". The Saskatchewan Surrogate Court held that the
words were precatory and did not place a binding obligation on the trustee. See
Crepeau Estate, Re (1982), 23 Sask.R. 170 (Sur. Ct.).
The Newfoundland Supreme Court, Trial Division, held that a bequest by
a testator which was expressed only as a wish was not binding on his estate. See
Collins Estate v. Collins Estate (1981), 34 Nfld. & P.E.I.R. 313; 95 A.P.R. 313
(Nfld. T.D.), para. 24.
Search aid - MLB Key No. - Wills Topic 5166 is assigned to cases that
consider the effect of precatory words. See www.mlb.nb.ca and Appendix A for
a list of cases that dealt with this issue.
12.11 Evidence, armchair rule
In a case that involved a boundary dispute, the Newfoundland and
Labrador Supreme Court, Trial Division, stated that the court had to determine the
testator's intention from what was written in a will. The court noted that in doing
so, judges apply the "armchair rule" and attempt to place themselves in the
armchair of the testator to determine the circumstances surrounding him at the
time he made his will as an aid to construing the language of the will. See Maher
v. Bussey (2004), 234 Nfld. & P.E.I.R. 56; 696 A.P.R. 56 (Nfld. T.D.), para. 19.
The Saskatchewan Court of Queen's Bench stated that the armchair rule
"requires the court to place itself in the position of the testator at the time he wrote
his will, then read the will and interpret it by utilizing admissible aids of
construction, such as the surrounding circumstances and context". Under the
armchair rule, only indirect extrinsic evidence known by the testator at the time he
made the will could be considered. Whatever occurred subsequent to the making
of the will was inadmissible. See Lenz Estate v. Lenz (2005), 259 Sask.R. 301
(Q.B.), para. 17.
Search aid - MLB Key No. - Wills Topic 5184 is assigned to cases that
consider the evidentiary rule called the "armchair rule". See www.mlb.nb.ca and
Appendix A for a list of cases that dealt with this issue.
12.12 Invalid directions
A man directed in his will that his horses be shot, presumably because of
his concern that they not end up in the hands of someone who would abuse them.
The New Brunswick Court of Queen's Bench, Trial Division, struck down the
direction and held that ensuring that the horses were properly placed and cared for
would satisfy the testator's intention that they not be abused. In the alternative, the
court held that the direction was void as contrary to public policy, because the
destruction of the horses would serve no useful purpose and would waste estate
assets even if carried out humanely. See Wishart Estate, Re (1992), 129
N.B.R.(2d) 397; 325 A.P.R. 397 (T.D.).
A testator's will required a beneficiary to remain in one of the named
"main stream Christian churches" in order to receive his inheritance. The
Newfoundland Supreme Court, Trial Division, concluded that a provision
restricting the religious affiliation of any person in Canada was contrary to public
policy. Further, if the provision was not contrary to public policy, it would have to
be declared void because the gift could never be perfected. The bequest could not
take effect until the death of the beneficiary, because only then would one know
whether or not the beneficiary had become associated with any of the churches
which were not "main stream". See Murley Estate, Re (1995), 130 Nfld. &
P.E.I.R. 271; 405 A.P.R. 271 (Nfld. T.D.).
Search aid - MLB Key No. - Wills Topic 5164 is assigned to cases that
consider invalid directions by a testator. See www.mlb.nb.ca and Appendix A for
a list of cases that dealt with this issue.
12.13 General v. particular intention; Cy-près doctrine
Where a Court finds upon the face of a will a clear, general or paramount
intention to which effect can be given, and a particular or subordinate intention to
which the Court cannot give effect, then the particular intention must be rejected
or modified. Such a modification is called the doctrine of cy-près, and the
intention of the testator is carried out as nearly as may be consistent with certain
rules of law. The doctrine is well established as regards charitable gifts. See
Halsbury’s Laws of England, 2nd Ed., vol. 34, para. 270.
The testatrix's will left a bequest to Twin Rivers Home Care Inc. When
the testatrix died, the Twin Rivers Health District, which had responsibility for
Twin Rivers Home Care Inc., no longer operated as such and responsibility for
that entity had passed to the Prairie North Health Region. The Saskatchewan Court
of Queen's Bench held that the testatrix was concerned with benefitting the facility
rather than the actual operator. The court applied the cy-près doctrine, holding
that the true meaning and intent of the clause in the will could be resolved by
substituting the name Prairie North Health Region for Twin Rivers Home Care Inc.
See Leer Estate, Re (2005), 264 Sask.R. 131 (Q.B.).
Search aid - MLB Key No. - Wills Topic 3543 is assigned to cases that
consider the cy-près doctrine. See www.mlb.nb.ca and Appendix A for a list of
cases that dealt with this issue.
12.14 Extrinsic evidence
The testator left his estate in trust to establish a summer camp for diabetic
children in his area and, if no camp was established, to the operators of an existing
camp. In fact the existing camp was operated by the Rotary Club for crippled
children, which offered camp facilities for two weeks a year to the Canadian
Diabetic Association for diabetic children. The New Brunswick Court of Queen's
Bench found that the will was ambiguous in its identification of the donee. The
Court of Queen's Bench admitted extrinsic evidence to resolve the ambiguity. See
Binns, Re (1976), 16 N.B.R.(2d) 601; 21 A.P.R. 601 (Q.B.).
An unmarried testator made bequests to his niece and to her young son,
his favourite relative. When the niece experienced financial difficulties, the testator
lent the niece money and he also changed the bequests in several codicils. The
Nova Scotia Supreme Court, finding ambiguity in what the testator intended, held
that it was entitled to determine the meaning in the light of the circumstances
surrounding the making of the will. The court interpreted the bequests in
accordance with the testator's intention to be protective and supportive of his
niece and fair and equitable to his other relatives, with the exception of his
favourite relative, his niece's son. See Brown Estate, Re (1995), 139 N.S.R.(2d)
252; 397 A.P.R. 252 (S.C.), paras. 25 to 35.
A testator left the residue of his estate to three unnamed children. The
testator had five children. The Saskatchewan Court of Queen's Bench held that the
will clearly contained an equivocation and it was therefore necessary to look at
extrinsic evidence of the testator's actual intention to resolve the equivocation. The
court looked to the typed instructions provided by the testator to the solicitor who
prepared the will. The instructions provided that the property was to be divided
equally between three of his children and contained the children's names. The
court held that the residue should be divided equally among these three children.
See Holland Estate, Re (1994), 122 Sask.R. 274 (Q.B.), paras. 1 to 11.
Search aid - MLB Key No. - Wills Topic 8544 is assigned to cases that
consider the admission of extrinsic evidence to determine the intention of the
testator. See www.mlb.nb.ca and Appendix A for a list of cases that dealt with
this issue.
Chapter 13 - Construction, Persons entitled to take
13.1 General
A testator invites litigation by the use of words like "children" or "issue" or
"family" rather than using the names of donees.
Search aid - MLB Key No. - Wills Topic 7002 is assigned to cases that
interpret the words "child" or "children". See www.mlb.nb.ca and Appendix A for
a list of cases that dealt with this issue.
13.2 Class gifts
"In my opinion the principle is clear enough. When there is a gift to a
number of persons who are united or connected by some common tie, and you
can see that the testator was looking to the body as a whole rather than to the
members constituting the body as individuals, and so you can see that he intended
that if one or more of that body died in his life-time the survivors should take the
gift between them, there is nothing to prevent your giving effect to the wishes of
the testator." See Allan Estate, Re (1994), 161 A.R. 292 (Sur. Ct.), para. 17.
"Where there is a gift to a group of persons and one or more of them
predeceases the testator, it is necessary to determine whether the gift is a gift
'personae designatae' or whether it is a class gift. ... generally speaking, a gift to a
group of persons whose number is not mentioned or whose members are not
named is to be regarded as a class gift, while a gift to a group whose number is
given or whose members are named is to be regarded as a gift 'personae
designatae'". See Campbell Estate, Re (1998), 172 Nfld. & P.E.I.R. 141; 528
A.P.R. 141 (P.E.I.T.D.), para. 7.
A testator had nine children. Two died before the testator executed his
will. Two others predeceased the testator. The residue clause of the testator's will
provided that his estate be divided "equally amongst my children, share and share
alike, to be theirs absolutely". At issue was whether the clause created a class gift
or either a tenancy in common or a gift persona designatae. The Prince Edward
Island Supreme Court, Trial Division, held that the testator made a class gift.
Therefore, the residue was to be divided equally among the five surviving children.
See Campbell Estate, Re (1998), 172 Nfld. & P.E.I.R. 141; 528 A.P.R. 141
(P.E.I.T.D.).
Search aid - MLB Key No. - Wills Topic 6803 is assigned to cases that
consider what is a class gift. See www.mlb.nb.ca and Appendix A for a list of
cases that dealt with this issue.
Chapter 14 - Construction, Quantity of Interest Taken
14.1 General
"A testator gives arbitrarily such estate as he thinks fit, consistently with
law, and, there is no presumption that he means one quantity of interest rather
than another". See Halsbury’s Laws of England, 2nd Ed., vol. 34, para. 377.
14.2 Absolute interests
"A person has an absolute interest in property when such is so completely
vested in the individual so that no contingency can deprive him of it without his
consent". Black’s Law Dictionary, 6th Ed., p. 812.
The residuary clause in a will instructed the executor to convert the
residue into money and establish a trust fund for the testatrix's son and pay him
$300/month "until ... this fund has been exhausted". The son died before the fund
was completely distributed. The Manitoba Court of Queen's Bench, Probate
Division, interpreted the clause and held that it created an absolute gift in the son.
The residue vested in the son at the time of the testatrix's death and, accordingly,
the fund formed part of the son's estate. The Manitoba Court of Appeal affirmed
the decision. See Ferguson Estate, Re (1992), 76 Man.R.(2d) 286; 10 W.A.C.
286 (C.A.).
Search aid - MLB Key No. - Wills Topic 7296 is assigned to cases that
consider whether a gift is an absolute gift. See www.mlb.nb.ca and Appendix A
for a list of cases that dealt with this issue.
14.3 Concurrent gifts, per capita or per stirpes
When property is given to the descendants of two or more persons, the
question frequently arises whether the donees are to take per stirpes, that is, as
representatives of their respective ancestors, or per capita, that is whether they
together form one class each member of which is to take an equal share.
A clause in the testator's will directed the executor to distribute
the residue of the testator's estate to "my nieces Yolande,
Jeannine, and Pauline and Alphonse Levasseur's 4 children - to
share and share alike". An issue in this application was whether
the clause divided the residue into sevenths (per capita) or into
fourths (per stirpes). The Alberta Surrogate Court held that,
given the presence of the phrase "share and share alike" coupled
with the rule that, prima facie, "to A and the children of B" was
an indication of a per capita distribution, the testator's intention
was one of a per capita distribution. The court directed that the
residue be divided into seven equal shares. See Boudreault
Estate, Re (2001), 290 A.R. 116 (Sur. Ct.).
Search aid
- MLB Key No. - Wills Topic 7388 is assigned to cases
where the donees take per capita. See www.mlb.nb.ca and Appendix A for a list
of cases that dealt with this issue.
14.4 Life interests
The interest taken by a donee may be defined by rights of enjoyment
attached to the gift. For example, a gift of the "possession" or "use and enjoyment"
of chattels prima facie gives the donee a life interest. See Halbury’s Laws of
England, 2nd Ed., vol. 34, para. 386.
The testator drafted a will wherein he bequeathed a duplex to his wife,
Martini, and indicated that she give it to the Christensens when she no longer need
the property. The Christensens asked the court to interpret the bequest. The
Alberta Court of Appeal held that a court should endeavour to give effect to the
testator's intention in interpreting a will. The most likely interpretation was that the
testator intended Martini to have a life estate without a power of encroachment,
with a gift over to the Christensens. The absence of the words "during her
lifetime" did not necessarily mean that the testator did not intend to grant his wife
a life estate. It was inappropriate to decide the case upon a standard that would
normally be applied to a will drafted by someone with legal training. See
Christensen v. Martini (1999), 232 A.R. 339; 195 W.A.C. 339 (C.A.).
The testator gave to his wife all his property "for her sole use during her
lifetime with full power and authority to hold", manage, sell and otherwise deal in
the property. The Nova Scotia Supreme Court, Trial Division, held that the
testator intended to confer a life estate on his wife. See Dinn Estate, Re (1977),
27 N.S.R.(2d) 298; 41 A.P.R. 298 (T.D.).
Search aid - MLB Key No. - Wills Topic 7400 is assigned to cases that
consider whether the donee took a life interest. See www.mlb.nb.ca and Appendix
A for a list of cases that dealt with this issue.
14.5 Concurrent gifts, joint tenancy or tenants in common
"When property is given to two or more persons concurrently
the question arises whether these persons are to take as joint
tenants, with the attendant right of survivorship, or as tenants in
common. The common law rule for both real and personal
property was that the donees took as joint tenants. This rule,
subject to any legislation to the contrary, is Canadian law.
However, the rule was always applied with reluctance, and the
slightest indication from the context to negative the idea of joint
tenancy was sufficient to result in a finding of tenancy in
common. So, in the Manitoba case Re Peter's Will (1967), 63
W.W.R. 180 the words 'in equal shares' were held to indicate a
tenancy in common. Furthermore, it has been said many times
that in case of ambiguity the court will always lean towards the
construction which creates a tenancy in common. " (emphasis
added). See Thomas G. Feeney, Canadian Law of Wills, vol.
2, page 99.
The New Brunswick Court of Queen's Bench stated that a joint gift
without words of limitation creates a joint tenancy with the right of survivorship.
See Mitchell Estate, Re (1972), 7 N.B.R.(2d) 504 (Q.B.), paragraph 5.
Search aid - MLB Key No. - Wills Topic 6858 is assigned to cases that
consider whether a gift created a joint tenancy. See www.mlb.nb.ca and Appendix
A for a list of cases that dealt with this issue.
14.6 Residue, what constitutes
A husband's will provided that all his life insurance policies, including
those naming his wife as beneficiary, be paid to his trustee for the benefit of his
three daughters as if the insurance proceeds formed part of the residue of his
estate. The Saskatchewan Court of Queen's Bench held that the insurance
proceeds did not form part of the residue of the estate; the will was simply being
used to change beneficiaries as authorized by s. 152 of the Insurance Act. See
Harry v. Harry Estate (1988), 67 Sask.R. 279 (Q.B.).
After disposing of the capital of a certain trust in her will the testatrix left
her "remaining capital" to a sister and to two nephews or the survivor of them if
one or both survived the sister - The Nova Scotia Supreme Court, Trial Division,
held that the clause constituted a gift of the residue of the testatrix' estate. See
Bowman Estates, Re (1975), 17 N.S.R.(2d) 76; 19 A.P.R. 76 (T.D.), para. 22.
A testator's will provided that "I nominate and appoint ... Timothy
Clarence Nelson Michael Murley, as heir to my Estate...". The Newfoundland
Supreme Court, Trial Division, concluded that the words had the legal effect of
making Timothy Murley the residuary legatee. The word "estate" encompassed the
residue and would apply to all assets not otherwise disposed of. See Murley
Estate, Re (1995), 130 Nfld. & P.E.I.R. 271; 405 A.P.R. 271 (Nfld. T.D.), para.
7.
Search aid - MLB Key No. - Wills Topic 7683 is assigned to cases that
consider what constitutes the residue. See www.mlb.nb.ca and Appendix A for a
list of cases that dealt with this issue.
Chapter 15 - Devolution of Estates, General
15.1 Intestate Succession
When a person dies without leaving a valid will that person is said to have
died intestate. When a person dies intestate a provincial statute, sometimes titled
Devolution of Estates Act, provides a "statutory will". That is, the statute directs
who is entitled to the estate of the intestate person.
Intestate succession legislation can apply in circumstances where a will is
invalid for a number of reasons, such as, improper execution, undue influence,
contrary to public policy, lack of capacity, etc. Such legislation can also apply to a
residuary gift that fails. A gift, other than a residuary gift, that fails becomes part
of the residue of an estate.
15.2 Intestacy v. inclusion in residue
The testator had three sons from two marriages and little contact with the
eldest. Another son, lacking legal training, prepared his father's will. The testator
intended that, provided his second wife survived him, she would inherit all his
estate, except that the testator's personal articles were to be divided between the
two youngest sons, in equal shares. The wife predeceased the testator. The British
Columbia Court of Appeal held that the testator's will failed to provide for his
assets (other than personal effects) in the event that his wife predeceased him.
The court declined to supply a missing bequest and affirmed that the residue
should be divided equally under the Estate Administration Act among the three
sons. See Howell v. Howell Estate (1999), 127 B.C.A.C. 272; 207 W.A.C. 272
(C.A.).
Search aid
- MLB Key No. -
Devolution of Estates Topic 405 is
assigned to cases that consider whether a gift is part of the residue or devolves
intestate. See www.mlb.nb.ca for a list of cases that dealt with this issue.
15.3 Partial Intestacy
In his holograph will a testator in his only bequest left his house and land
to one of his sons. His wife and other offspring were specifically excluded from
receiving anything, but the testator failed to dispose of his other assets. The
Newfoundland Supreme Court, Trial Division, held that the specifically excluded
people were not entitled to share on intestacy in the undisposed property. The
court held that the specific exclusion of his wife and other offspring created an
implied gift of the balance to the son who received the bequest. See Sharpe
Estate v. Sharpe (1985), 53 Nfld. & P.E.I.R. 247: 156 A.P.R. 247 (Nfld. T.D.).
Search aid
- MLB Key No. -
Devolution of Estates Topic 521 is
assigned to cases that consider the entitlement to intestate property on a partial
intestacy. See www.mlb.nb.ca for a list of cases that dealt with this issue.
15.4 Bars to inheritance, public policy
The deceased died intestate survived by her husband and one infant
daughter. The husband was convicted of the murder of the deceased. The
Manitoba Court of Queen's Bench held that by public policy, the husband and his
heirs, except for the deceased's child, were disentitled from taking a benefit in the
estate of the deceased whom he had feloniously killed. The infant daughter was
the sole heir of the deceased under the Devolution of Estates Act, s. 6(3). See
Proctor Estate v. Proctor (1989), 59 Man.R.(2d) 199 (Q.B.), paras. 12 to 18.
Search aid
- MLB Key No. -
Devolution of Estates Topic 510 is
assigned to cases that consider whether a donee is barred by public policy from
inheriting intestate property. See www.mlb.nb.ca and Appendix A for a list of
cases that dealt with this issue.
Chapter 16 - Protection of Testator’s Family
16.1 General, statutory provisions
The degree of freedom of testamentary disposition provided by English
law sometimes resulted in a testator disregarding the needs of dependents. Many
jurisdictions have enacted legislation that prevents a testator from disregarding
such family obligations. In Canada such legislation is usually called the Dependents
Relief Act or the Testator’s Family Maintenance Act or the Family Relief Act or
the Marital Property Act. Usually such legislation provides that a dependent of a
testator may apply to a court for relief if adequate provision for maintenance and
support has not been made in the testator’s will. The interpretation of this
legislation has resulted in a significant body of case law. For example,
- the moral obligation of a testator to dependents was
the issue in 32 cases in six print reporters since 1978 - See
www.mlb.nb.ca and MLB Key No. - Family Law Topic 6610;
- what constitutes "proper maintenance and support" of
dependents was the issue in 33 cases in eight print reporters
since 1974 - See www.mlb.nb.ca and MLB Key No. - Family
Law Topic 6604;
- whether the claimant was a "dependent" was the issue
in 29 cases in nine print reporters since 1980 - See
www.mlb.nb.ca and MLB Key No. - Family Law Topic 6664;
- the economic status of the claimant was the issue in
15 cases in seven print reporters since 1981 - See
www.mlb.nb.ca and MLB Key No. - Family Law Topic 6689;
- the entitlement of a common law spouse was the issue
in 19 cases in eight print reporters since 1984 - See
www.mlb.nb.ca and MLB Key No. - Family Law Topic 662.
NOTES
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