In drafting testamentary documents, the careful and precise use of language is of the utmost importance. After all, once the testator is dead and their will takes effect, the testator is no longer around to clarify any potential misunderstandings or ambiguous terms.

There are plenty of problems that can arise when interpreting a Will, from bequests to charities which no longer exist to the proper use of “per stirpes”. Even the most seemingly straightforward terms used in testamentary documents can lead to a great amount of discord among those with an interest in an estate. Today, I’ll look at one particular term which seems innocuous enough: “next of kin”.

Dictionaries, such as the Oxford Dictionary, defines “next of kin” in a straightforward manner as “a person’s closest living relative or relatives”. While seemingly simple, this term has lead to confusion in the past. In 2003, the Court of Appeal addressed this issue in Thomann v. Armgardt Estate, 170 OAC 11. In that case, the deceased left a Will relating to her assets in Canada in which she left the residue of her “Estate in Canada” to her next of kin in equal shares. She also had a will relating to her assets in Germany. At the time of her death, the testator had one sister and nieces and nephews living in Germany, along with one niece and a great-niece and great-nephew living in Canada. The testator’s sister died, however, before the estate was distributed.

The application judge found that “next of kin” had to be interpreted in conjunction with “equal shares” such that the testator intended for her estate to be left to a plurality of beneficiaries. Additionally, based on the use of a German will (which only provided specific bequests to German relatives) and the Canadian will (which only made a specific bequest to a Canadian relative), the application judge found that each will was only meant to benefit relatives living in the country to which the will applied. The judge thus found that the testator intended to leave the residue of her Canadian estate to her relatives (niece, great-niece, and great-nephew) living in Canada equally.

The Court of Appeal, on the other hand, made it clear that “next of kin” is to be defined by its ordinary meaning, i.e. as being one’s closest living relatives. Hence the Court found that the estate was to be distributed to the estate of the testator’s sister.

While it’s important to be as specific as possible and always good to define terms wherever possible, this case perhaps best serves to illustrate the point that you can’t prepare for every possible misinterpretation.

Thanks for reading!

Sayuri Kagami