Recently, the Ontario Court of Appeal had the opportunity to consider the correct use of the “armchair rule” in will interpretations.
In Ross v Canada Trust Company, 2021 ONCA 161, the Court of Appeal was tasked with determining whether the motion judge’s use of the armchair rule to interpret provisions in a Will regarding the disposition of a cottage property was correct.
The motion judge interpreted the Will as directing the proceeds to be equally distributed amongst the Deceased’s four grandchildren. However, one grandchild disagreed with the interpretation, and argued that the proper interpretation would require the sale proceeds to be divided into five equal shares, with distribution of two shares to him, such that he would ultimately receive 40% of the sale proceeds, rather than the 25% that would result from the motion judge’s decision.
The respondents on the appeal cross-appealed. While they agreed with the judgment, they disagreed with the manner in which the decision was arrived at. In short, both parties submitted that the motion judged erred by resorting to the “armchair rule”.
In explaining the armchair rule, the Court of Appeal cites Ian Hull and Suzana Popovic-Montag’s description of the armchair rule in Feeney’s Canadian Law of Wills, 4th ed. (Toronto: LexisNexis, 2020) at 10.45 and 10.46:
“In the first instance, the court may be convinced that the testator’s intention can be discerned from the will itself. In such a situation, since the testator must be taken to have used the language of the will in view of the surrounding circumstances known to him or her when he or she made his or her will, evidence of such circumstances is necessarily admissible, at least insofar as it corresponds to the facts and circumstances referred to in the will. It seems obvious that a court might conclude that admissible evidence of surrounding circumstances is not helpful in determining meaning…The court puts itself in the position of the testator at the point when he or she made his or her will, and, from that vantage point, reads the will, and construes it, in the light of the surrounding facts and circumstances. This approach is commonly referred to as the “armchair rule”. [emphasis added].
The Court of Appeal rejected the arguments raised by the parties, and concluded that the interpretative methodology applied by the motion judge was sound. The Court found that where the motions judge could not discern the plain meaning of the Will’s language, the motions judge correctly took a step back to “consider the bigger picture” of the surrounding circumstances and applied the armchair rule. The court furthered that given the inconsistency that results from the two Will provisions in question, it was necessary to resort to the armchair rule.
The Court of Appeal ultimately held that the motion judge did not err in applying the armchair rule, the conclusion did not reveal any palpable or overriding error, and, the decision was well supported by the evidence.
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