When the courts are asked to interpret a will, it is now normal to apply the armchair rule at the outset and consider surrounding circumstances that existed when the will was made, regardless of whether the will is ambiguous. The New Brunswick Court of Appeal’s recent decision in Stuart v Estate of Vernon Allan Sanford et al, 2025 NBCA 110 provides helpful guidance on the scope of the rule, confirming both the modern approach to will interpretation and limits on the admissibility of extrinsic evidence.
The Dispute
In this case, the 2006 will of the deceased left the residue of his estate — valued at over $2 million — to two of his three sons. Lee, his youngest son, was born in 2004 but was not included in the 2006 will as a beneficiary. The year before he died, however, the deceased established an RRSP worth $200,000 and named Lee as the beneficiary.
After his father’s death, Lee applied to have the residue clause of the 2006 will interpreted as including him as an equal beneficiary with his step-brothers. In the alternative, he sought dependant support under the Provisions for Dependants Act.
After Lee’s application was dismissed by a chambers judge, reported at 2024 NBKB 192, he appealed the decision respecting both the interpretation of the will and his entitlement to dependant support.
Court of Appeal Affirms the Modern Approach to the Armchair Rule
Will interpretation under the armchair rule was the first issue addressed by the New Brunswick Court of Appeal, beginning with a discussion of two lines of authority that have emerged in Canada:
- The traditional approach, under which evidence of surrounding circumstances is only admissible if a will is ambiguous.
- The modern approach, which permits surrounding circumstances to be considered from the outset of the interpretive exercise, even when the language used in a will appears to be clear.
Citing the Ontario Court of Appeal’s reasoning in Ross v. Canada Trust Company, 2021 ONCA 161, in addition to other case law, the Court of Appeal affirmed that the modern approach to the armchair rule prevails in New Brunswick. As the Court put it:
“Surrounding circumstances must … be considered from the outset of the interpretive process, not only in the case of apparent ambiguity. Failure to do so constitutes an error in law. Even where the language appears clear on its face, surrounding circumstances may reveal a latent ambiguity that would otherwise go unnoticed.”
The New Brunswick Court of Appeal went on to note that a court of construction will not err by considering the ordinary meaning of the words in the will at the start of the interpretive exercise, so long as the surrounding circumstances are considered before the court makes its final determination, again citing Ross.
However, the Court also made it clear that not all extrinsic evidence is admissible under the armchair rule, recognizing that “[t]he doctrine is only available for interpreting the words used by the testator in the will. Surrounding circumstances cannot be used to explain what the testator intended to write” or to re-write a will. As such, direct evidence of a testator’s intent, such as third-party testimony on point, is largely inadmissible.
Given this limitation, the Court of Appeal found that the chambers judge erred in admitting extrinsic evidence which established that the deceased did not provide child support for his two older sons following his divorce in keeping with an agreement he made with his ex-wife to build his estate to benefit their two sons if she would forgo claiming a share of his assets, child support, and spousal support when they divorced. The Court of Appeal held that the evidence was inadmissible, since it was presented to support an inference that the deceased intended to benefit his two older sons exclusively in accordance with the agreement.
The Court of Appeal also held that the RRSP that the deceased established in 2022 and left to Lee could not be considered when interpreting the 2006 will, since it was not part of the surrounding circumstances when the will was created.
Outcome: No Change to the Will, but Support Granted
Despite the evidentiary errors made by the chambers judge, the Court of Appeal did not overturn her decision. The will left the residue to “each of my children, namely” the deceased’s two older sons,* and could not be read as including Lee without, in the Court’s view, “effectively introducing elements that do not appear in the will.”
However, the Court did allow the appeal with respect to dependant support. Considering the size of the estate, Lee’s financial dependency on the deceased when he passed away, and the moral obligation that the deceased owed to Lee, the Court awarded him 20% of the net residue.
Core Lessons Regarding Will Interpretation
The Court of Appeal’s decision in Stuart reinforces the modern approach to will interpretation under the armchair rule – being the notion that courts can (and should) consider surrounding circumstances from the outset when interpreting a will. However, there are limitations on what extrinsic evidence is admissible under the rule. Not only is direct evidence of a testator’s intent largely inadmissible when interpreting a will, but so is evidence of events that occurred after the will was made.
Thank you for reading and enjoy the rest of your day,
Suzana.
* The residual clause stated:
To divide the rest and residue of my estate into two (2) equal shares so there is one such share for each of my children, namely, NATHANIAL JOHN SANFORD,and JONATHAN KENT SANFORD, and to deal with said shares as follows;
(i) To pay over to each child of mine his share for his own use absolutely;
(ii) If either of my children should predecease me, then the share not paid to my deceased child shall be paid to my surviving child. [underlining added]