Determining what a testator intended in their Will can sometimes be more of an art than a science. This can be particularly true when a Will appears to contain inconsistent clauses which appear to direct the Estate Trustee to do two conflicting things. In the event the inconsistencies cannot be resolved between the interested parties the Estate Trustee will likely be required to seek the assistance, advice and direction of the court to resolve the matter. But how does the court resolve the inconsistencies?
In Dice v. Dice Estate, 2012 ONCA 468, the Ontario Court of Appeal confirms the first place to look in resolving inconsistent clauses is the wording of the will itself to see if from a plain reading of the will as a whole the intentions of the testator can be ascertained. If yes, the court’s inquiry can end there.
When the testator’s intention cannot be ascertained from the “plain meaning of the language that was used“, the court may then consider the surrounding circumstances to determine the testator’s intentions. This process is known as the “armchair rule”, with the court being said to place themselves in the position of the testator to determine what the testator likely intended by the provisions. In discussing the “armchair rule”, the Ontario Court of Appeal in Dice v. Dice Estate states the following:
“Under this rule, the court sits in the place of the testator, assumes the same knowledge the testator had of the extent of his assets, the size and makeup of his family, and his relationship to its members, so far as these things can be ascertained from the evidence presented. The purpose of this exercise is to put the court in, as close as possible to, the same position of the testator [when] making his last will and testament.”
When the court still cannot resolve the inconsistent clauses after placing themselves in the position of the testator, the court will typically then apply what is known as the “rule of thumb”, which in effect directs the court when there are two clauses which appear to contradict each other to follow the direction of the later provision, believing there is an implicit revocation of the prior inconsistency by the inclusion of the later term. In discussing the “rule of thumb”, Feeney’s Canadian Law of Wills provides:
“If a will makes a certain provision and a later will or codicil contains a clause that is inconsistent with the earlier provision, the later clause will probably prevail in the court of probate since there is usually an implied revocation”
Although the “rule of thumb” is not an absolute rule it can help provide some guidance regarding what the court may do when faced with inconsistent clauses which cannot be resolved. When all else fails, the later of the clauses will likely prevail.
Thank you for reading.