In an ideal world, all people would have a clear and unambiguous
will in place at the time of their death; however, this is not
always the case. In the recent case of Re Brooks Estate the B.C. Supreme Court faced
a situation of having to interpret an incomplete and unclear will
and, in doing so, set out the principles that should be followed in
Robert Brooks died in March 2010 leaving a handwritten,
half-page will. The will was dated and properly witnessed. The bulk
of Robert's estate consisted of a house in Meritt, valued at
$133,300, and two bank accounts with a total value of $144,000. The
residual of the estate was made up of personal effects and
household furnishings valued at $500.
The dispositive provisions of the will began as follows:
I leave my property [address and legal description of the real
property] to my brother George Brooks [address] Executor with Power
of Attorney. Also my accounts at Royal Bank of Canada Merritt
Robert then listed the names and addresses of his five friends,
followed by the statement:
I would all the people named above share equally in my
George took the position that the first clause was intended to
effect specific gifts of the house and bank accounts to him, and
that the other five beneficiaries were to divide the residue of the
estate. The other five beneficiaries argued that the reference to
"Executor with Power of Attorney" in the first clause
meant that George was to take possession of the assets only in his
capacity as executor. According to them, they were to share equally
in Robert's estate, with George receiving nothing.
In attempting to resolve the intent of the will, Mr. Justice
Nate Smith set out a summary of the law to be considered when the
court is tasked with the construction of a will:
The court is to give effect to the intention of the testator.
This is normally accomplished by giving fair and literal meaning to
the actual language of the will.
The court should make every effort to reconcile conflicting
provisions of a will rather than absolutely ignoring one in favour
of the other.
Where there is an obvious ambiguity or omission, the court may
ignore, add or substitute words, but only to a very limited degree
and only when the intention is plain and clear. Further words must
not be read in unless one can be reasonably certain from the
context of the will itself what the words that have been omitted
If the court is unable to resolve the construction of the will
based upon the foregoing principles, extrinsic evidence may be used
to resolve ambiguity. If this becomes necessary, the judge must try
to place him or herself in the position of the testator at the time
when the will was made, concentrating on the testator's
thoughts on the circumstances which then existed and which might
reasonably be expected to have influenced the testator in the
disposition of his or her property. Due weight must be given to
circumstances that would bear on the intention of the testator. The
will should be considered in its entirety and, after full
consideration of all of the provisions and the language used in the
will, the court will try to find the intention that was in the mind
of the testator. Once an opinion has been formed as to that
intention, the court will strive to give effect to it, and should
do so unless there is some rule or principle of law prohibiting it
from doing so.
In the case of Robert Brooks' will, the Court concluded,
having regard to the language of the will and the principles set
out above, that the will intended to divide all of Robert's
estate (including the house and the bank accounts) equally among
George and the other five named beneficiaries.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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It is not uncommon for parents to provide monetary gifts to their adult children. Parents may wish to help their child with a down payment on a property, or help pay out their child's existing mortgage.
On March 31, 2014, BC's new Wills, Estates and Succession Act1 ("WESA") will come into force. WESA introduces new protections for beneficiaries of estates that are in danger of being disputed or deemed ineffective by a court.
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