The British Columbia Court of Appeal’s decision in Brink v. Reeves Estate (2025 BCCA 295) offers a striking example of how the plain wording of a will can prevail over fairness or changing circumstances. It is also a reminder, echoed in Ontario case law, that courts will not rewrite a will to achieve what seems like a more balanced result decades later.
In 1984, Diane, then 41 and terminally ill, severed a joint tenancy with her common law husband, Robert, and signed a hastily drafted will. She left Robert “the use, occupation and enjoyment” of her half interest in their Langley home “so long as he shall be living,” but also directed that, upon his death or sale of the property, “my divided one half interest at the time of my death” should be paid to her children.
Four decades later, that modest $50,000 property was worth over $1.2 million. Diane’s children argued the will created a life estate, entitling them to half the current value. Robert’s estate argued the will gave him a conditional gift, the property outright, subject only to paying the children the 1984 value of Diane’s equity, roughly $14,000.
The Court of Appeal sided with Robert’s estate. Justice Fenlon found that the will’s wording fixed the valuation date at the time of death and that the phrase “no interest payable” only made sense if Robert owned the property absolutely. Although the result left the children with a nominal sum, the Court made clear that its role was to respect the testator’s words, not to rewrite them for fairness:
“The task of the court is not to rewrite a will to make it fairer in the present circumstances. It is to identify and respect the wishes of the testator as expressed at the time the will was drawn.”
The Ontario Court of Appeal expressed the same philosophy in Rondel v. Robinson Estate (2011 ONCA 493). There, the testator made a later Canadian will that inadvertently revoked an earlier Spanish will. The court refused to admit affidavits from friends and the drafting solicitor asserting that she never meant to revoke the Spanish will. Justice Juriansz held that a testator’s intention must be found in the written words of the will itself, not in third party memories or speculation about what the testator “really meant.”
Thanks for reading!
Grey Wen