Courts are often asked to interpret what was meant by the testator by the terms of his or her will. This was the case in the Nova Scotia decision of Maskell Estate (Re), 2017 NSSC 305 (CanLII).

There, the deceased left a Will that made various specific bequests, including a gift off “Any cash, securities, investments or any other assets held by Scotia McLeod at the time of my death, to be divided equally between” the deceased’s mother and five others who were close to the deceased. The residue clause of the estate provided that the residue of the estate was to pass to the deceased’s spouse.

One of the children argued that the bequest conveyed all of the deceased’s cash, securities and investments, whether held by Scotia McLeod or otherwise. The Estate took the position that the clause only dealt with assets held by Scotia McLeod.

In considering the issue, the court set out a “roadmap” for the interpretation of the will. These rules of construction included:

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 some 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.

Extrinsic evidence is not to be referred to unless there is ambiguity in the terms of the will. On the topic of extrinsic evidence, the judge summarized the law as follows:

1. It is evidence which establishes a context for the testator’s words. Evidence of the testator’s intentions may include hearsay reports of the testator’s words admissible under exceptions or the principle analysis;
2. Where the testamentary instrument is clear and unambiguous no evidence beyond the document is necessary to determine the proper construction;
3. Where the testamentary instrument is unclear as to intent or construction, armchair evidence is receivable. Cases have concluded that where there is a legitimate dispute as to ambiguity, armchair evidence ought to be received where it is likely to assist in resolving the ambiguity;
4. Where a testamentary instrument is ambiguous extrinsic evidence of intent is receivable. In this context ambiguity does not simply mean competing possible interpretations. The competing interpretations must be plausible;
5. Where there is reason to believe that the testator made a mistake and the mistake was one of fact not law, evidence may be received. Where the alleged mistake is established the offending portions of the instrument are struck and the balance of the document is then construed.

The court held that the bequest of the cash and investments came within a list of specific bequests: it did not appear to be a “catch all” clause. However, this was not determinative.  The court then turned to the wording of the clause. Most telling was the fact that it specifically referred to assets “held by Scotia McLeod”. The Applicant’s interpretation would render this wording redundant or surplus. It would also mean that the residue clause would be redundant or surplus.

In case there was an issue as to this determination, the court looked to outside evidence, and in particular, the evidence of the drafting solicitor. The solicitor’s evidence was that the deceased clearly intended the clause to refer to assets held with Scotia McLeod only.

In conclusion, and perhaps not surprisingly,  the judge held that the bequest of cash, investments or other assets was limited to such assets “held by Scotia McLeod”.

On the issue of costs, the court applied the “modern trend” in probate litigation, and found the applicant liable for costs. Costs were ordered on a party and party basis, as opposed to a solicitor-client basis: “While I have concluded that the litigation was not well founded, I do not conclude it was frivolous or advanced only for a vexatious purpose”. The applicant was ordered to pay costs to the estate totalling $14,250 and to the spouse totalling $13,250, plus disbursements.
Thank you for reading.
Paul Trudelle