A few weeks ago we discussed the Armchair rule in another blog wherein we explained what the Armchair rule is, how it came about, and how the Court has explained the process for using it. Today, we look at a recent case where the Court of Appeal found the armchair rule to have been properly applied by the lower court.

In Jonas v. Jonas, 2022 ONCA 845 the Ontario Court of Appeal was asked to review the Superior Court of Justice’s interpretation of the residue clause of the Will. The residue clause read:

I DIRECT my trustees to divide the rest, residue and remainder of my estate as follows: forty per cent (40%) to be divided equally among my children who shall survive me and sixty per cent (60%) to be divided equally between my grandchildren and my great grandchildren (if any) who shall survive me or be born within ten years of my decease, in equal shares per stirpes. Provided that the share to my grandchildren shall be kept and invested by my trustee and used for the support of such grandchildren and for their education and then paid to each of them upon such grandchild attaining the age of 40.

The appellant, the daughter of the testator, was a beneficiary along with the testator’s common law spouse, his three other children, and his four grandchildren. The appellant was concerned about the interpretation of the phrase “in equal shares per stirpes” as regards to the 60% of the residue. The appellant’s view was that the 60% of the residue was to be divided equally between the children, and that if a child of the testator had no children of their own on the vesting date, then the testator’s child would receive a quarter of the total residue, comprising of their own quarter share of the 40% of the residue, and their 15% share in the remaining 60% of the residue. The OCL disagreed, and the application judge supported the OCL’s argument that the 60% was to be divided only amongst the grandchildren and great-grandchildren born by the vesting date.

The Court of Appeal found that the application judge had correctly applied the armchair rule, which directs the Court to sit in the place of the testator and assume the same knowledge that the testator had of their affairs and family based on the evidence presented, in order to best determine the testator’s intention. The application judge saw the testator’s division of classes of beneficiaries as an attempt to create a per stirpes gift over and ensure equal distribution within the two classes, but not amongst them. In coming to this decision, the application judge relied on Dice v. Dice Estate, 2012 ONCA 468.

The Court of Appeal looked at the application of the armchair rule and determined that the issue was ambiguous, and that there were several potential interpretations of the clause which the judge could have reasonably chosen. The judge’s choice was the option which most closely followed the judge’s interpretation of the Will when read as a whole.

The Ontario Court of Appeal has shown that for the armchair rule to be properly applied, the Court must consider the various interpretations open to them, and only once they have reviewed all these potential interpretations, determine which one most closely aligns with the knowledge that the testator had when writing their Will.