Interpreting Ambiguity in a Will or Trust – Hull on Estate and Succession Planning #208
Listen to: Interpreting Ambiguity in a Will or Trust
This week on Hull on Estate and Succession Planning, Ian continues his discussion on what happens when words in a will are not clear and explains the various methods that can be used to seek interpretation.
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Ian M. Hull – Click here for more information on Ian Hull.
Suzana Popovic-Montag – Click here for more information on Suzana Popovic-Montag.
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Welcome to Hull on Estate and Succession Planning, a series of podcasts hosted by Ian Hull and Suzana Popovic-Montag. The podcast you’re listening to will provide information and insights into estate planning in Canada. From the offices of Hull & Hull in Toronto, here are Ian and Suzana.
Ian Hull: Hi and welcome to Hull on Estates and Succession Planning. You’re listening and possibly watching episode 208.
Well, welcome back. And again, I’m on a solo mission here because of Suzana’s holidays. We are forced to go it alone. But I will endure and hopefully it will be an interesting podcast on a solo basis.
I wanted to, in the last podcast I started with the announcement of the reminder to many of us who knew him well the passing…the sad passing of Professor Whiteside from the University of Windsor, Ontario Law School.
I also want to talk about, not that this is going to turn into an obituary podcast, but the death of who I think is a really fascinating guy and an interesting book that I just read, and that is George Carlin. Now George Carlin is known to most of us as a comedian. Fascinating guy, though, beyond that and he wrote a book. In the last 10 years of his life he was writing an autobiography. He passed away in 2008 so he didn’t actually get to complete it. But he worked with the co-author on the book and it’s called “Last Words”. And I just finished reading the book this summer, fascinating book and a really interesting read because George Carlin was so much more than just a comedian. I mean, he was the guy that branched out into comedy at a level that nobody had seen before in the 70’s. He had wild days of lifestyle choices during the 70’s and then the 80’s and then he became a children’s show expert and became a really interesting philosopher. And if you check out Google, some of the best comments about life, some of the most philosophical comments about life from a modern day philosopher, so to speak, or famous philosopher, are from George Carlin. And so anyway I just wanted to emphasize that I really enjoyed reading his book. And it’s called “Last Words”. And he passed away, as I say, in June of ’08.
Alright, before we were talking about interpreting Wills. And again, it’s important to me because I thought it would be a helpful analysis to consider when one does a Will, what can happen. We’ve talked about how it can go astray because family fights. We can talk about solicitor’s negligence where you draw the wrong word, you put the wrong words in. What we haven’t talked about a lot is what happens when the words aren’t clear. And I talked about in my last podcast the matrix, the steps that the Court will take in coming to its understanding and ultimately its decision as to what the words mean.
And where I’d left off was I had walked through the fact that we read the Will as a whole. I walked through that if we can get a plain meaning out of the words, we stop there and we finish the analysis. If we can’t, there’s still some ambiguity in the language of the Will, then we go to the next level and that is, look at the surrounding circumstances of the factual matrix. And I just wanted to spend a few minutes digging down a little bit on what we mean by how deep we can go because it’s often said that, you know, it would be helpful – obviously it would be great if you are trying to interpret if the person who drew the Will was around. Well they’re dead, so we can’t use them. And so a lot of people think intuitively, well let’s go talk to the lawyers or the doctors or the people that were around, you know, around the deceased when this was all happening. And there’s layers of admissibility. There’s a whole bunch of rules of evidence that come to play in that regard. But what was important, and it’s really interesting the way the Courts have approached is that they’ve said look, we’re gonna look to what is really easily identifiable evidence. And when I say that, I mean, documents, letters, codified notes, things like that that were created contemporaneously at the time the trust was made, at the time that the Will was made. They’re gonna also and in rare occasion, they’re gonna listen to and, you know, in a sense, enhance their knowledge of the surrounding circumstances. Remember, I talked about the armchair rule. Get a real feel of the deceased’s thinking by sitting in the big chair and thinking it through. By looking at, on rare occasion and sort of the lowest level of evidentiary admissibility is the idea of talking to the lawyer themselves, if they’re still alive. Getting their direct evidence today. So putting to that lawyer, saying well what did the testator mean when they said this? And do that by way of examinations in respect of the lawyer. Now that’s an option as well and really what the Courts have said is we discourage that a little bit. We’d rather source it from the concurrently made documents at the time that the Will or the deed was being drafted. That’s sort of position A, if we’re gonna look at the surrounding circumstances, or we’re gonna look at the factual matrix.
So that food chain of review and that sort of…again, it’s an interpretation matrix. We talk about a factual matrix. That’s the interpretation matrix that the Courts will typically step into when sitting down and being asked to answer what specific words or a trust mean.
So in the context of that, of course, are situations where you want to say okay, well if we have an interpretation that needs to be undertaken here, what’s the process? And I’ll just tell you briefly what the process in Ontario is. And it’s similar across Canada and most of the United States, where interpretations are necessary. You go to the Court…when I say, you, typically the estate trustee reads the Will and says I don’t know what that means. It’s ambiguous, I’m not sure what steps to take from an administration standpoint. Do I pay it to A? Do I pay it to B? I’m not sure, it’s not clear. You bring an application for advice and direction. You go to the Court and you say to the Court look, this is what it says, that is what it could mean, this is what it also could mean. We need you to help us interpret this. And when you set up this system, it’s typically three parties. The one party, the neutral trustee that says look, I can’t understand these words. It could mean this, it could mean that. And then what happens is this and that get lawyered up. This and that get represented. So if the trustee says well, it could be that I pay all the money to A, but it could be I pay all the money to B, A gets a lawyer to advocate strongly that it comes to A and B gets a lawyer to advocate strongly that it comes to B. So you can see how the litigation matrix unfolds and that is, is that a mutual proposition is put to the Court and then it’s worked out and analyzed and argued in respect of, you know, either side with the benefit of having the Court have at least started the process with an analysis that’s sort of neutral. And it’s sort of like, well look, these are all the possibilities there are. Now you’ll hear from all of the others as to what they think is the right one. I’m not saying it’s the right way, your Honour. I’m just….[inaudible]
You have been listening to Hull on Estate and Succession Planning by Ian
Hull and Suzana Popovic-Montag. The podcast that you have been listening
to has been provided as an information service. It is a summary of current
issues in estates and estate planning. It is not legal advice and you are reminded to always speak with a legal professional regarding your specific circumstance.
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