Picture this. You are the Estate Trustee of an estate in which the testator directed their house along with its “contents” are to be left to a particular beneficiary. Although the direction to include the “contents” of the house seems simple enough with respect to items such as any furniture located at the house, in going through the house you discover the testator had a significant amount of cash located in a safe in the house. Since this cash was physically located in the house does it form part of the “contents”, or are assets such as cash somehow special and excluded from the “contents” description?
In Di Bella v. Kangas, 2001 BCSC 315, the Supreme Court of British Columbia was asked to consider whether approximately $25,000.00 in cash found at the testator’s house was to be considered part of the “contents” of the house, and thus subject to the specific bequest of the contents of her house, or whether the cash was to form part of the residue to be distributed to different beneficiaries. In ultimately concluding the cash was not part of the “contents” of the house and was to form part of the residue, the court reasoned that cash is “typically not used or enjoyed in a house”, and that large amounts of cash are not typical contents of a house, such that the testator would not likely have understood or intended any cash found at her house to form part of the “contents” of her house to be divided as directed in the Will.
Although Di Bella v. Kangas provides some guidance for how the court may interpret whether cash found at a house forms part of the “contents” of the house, the conclusion is ultimately factually specific to the testator in question. The court must apply the rules of interpretation to each specific case, and determine what that particular testator would have intended by the word “contents” after placing themselves in the position of the testator through the armchair rule. Although most individuals would likely fit the description adopted by the court in Di Bella v. Kangas, where significant amounts of cash are not a typical item stored at the house and thus not “contents”, it is also possible that a particular testator had a habit of storing significant amounts of cash at their house such that they likely would have understood the “contents” of their house to include the cash.
As a result of the possibility the court may interpret the phrase “contents” differently depending on the testator in question, the safest option for an Estate Trustee when faced with a situation in which there is a disagreement about whether a particular asset forms part of the “contents” of the house is likely to bring an Application for the opinion, advice, and direction of the court.
Thank you for reading.