On June 27, 2013, the Court of Queen's Bench of Alberta
released the decision of the Honourable Justice Sisson in Ryrie
v. Ryrie. The application was for Advice and Direction in
interpreting a paragraph of the Testator's last Will dated May
25, 2011. At the time the Testator executed the May 2011 Will, he
was in his 90s and had speech and vision impairments that made it
difficult for the Testator to communicate. The paragraph in
question read as follows:
"4. I give all my property, including any property over
which I have a power of appointment to my Trustee upon the
(a) To divide and distribute the residue of my estate among my
children, Brian Martin Ryrie, Lynette Fern Ryrie, Wallace Bruce
Ryrie, Lionel Gary Ryrie, Diane B. Howard and Barry David Ryrie, in
equal shares, provided that if any child of mind has predeceased me
leaving issue alive at my death, then I direct that such issue
shall receive in equal shares, per stirpes, that share in
my estate to which such deceased child of mine would have been
entitled, had he or she survived me."
Prima facie, Clause 4(a) appears to be unambiguous,
however, the issue before the Court is created by the fact that in
2003, one of the Testator's children, who is not listed in
paragraph 4(a) of the May 2011 Will, predeceased him leaving two
children. It is these two grandchildren that were the
Applicant's in this application.
The Court directly considered the interpretation of Section 26
and Section 39 of the Wills and Succession Act
("WSA") and their interaction with Section 11 of the
Alberta Evidence Act ("EA"). Section 26 of the
WSA deals with interpretation and evidence and Section 39 of the
WSA deals with rectification. Section 11 of the EA deals with the
corroboration of evidence rule in estates. Given the small amount
of case law that considers the WSA, the Court held that the Alberta
Law Reform Institute ("ALRI") publication, Wills and the
Legal Effects of Changed Circumstances, is appropriate evidence of
the context, purpose and textual meaning contained in the WSA and
will bear considerable weight.
The issues the Court was asked to consider were two fold, first
when must a Court look at extrinsic evidence in interpreting the
intention of the Testator and secondly, if the Court must look at
extrinsic evidence, what does that extrinsic evidence disclose?
The Court held that the WSA is clear in that if external
circumstances require or if the intent of the testator is
ambiguous, then the Court MUST conduct an investigation into the
intent of the testator. The Court held that Clause 4(a) was
ambiguous in the circumstances because the Clause was capable of
more than one interpretation depending upon how the second half of
the paragraph that deals with the disposition to unnamed
predeceased children is interpreted to interact with the first half
of the paragraph that deals with the disposition to named
The Court in examining the evidence placed particular reliance
on the drafting solicitor's evidence that it was the
Testator's intention for the Applicants to equally share in the
share of the Estate that their deceased father (the Testator's
son) would have received. The drafting solicitor indicated that she
believed that this is what the Will provided for at the time the
Testator signed it and only later realized the possibility for
ambiguity in the interpretation of Clause 4(a). In reliance upon
the drafting solicitor's evidence, the Court used the
rectification powers found in Section 39 of WSA to modify the May
2011 Will to make it clear that the Applicants were to receive and
share their deceased father's 1/7 share of the residue.
It is interesting to note that the ability of the Court to add
or delete words in order to rectify a will is a discretionary power
under section 39 of the WSA. The Court in Ryrie does not
engage in an analysis of what factors should be considered when
determining whether to exercise that power.
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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