A recent Ontario Superior Court decision provides a useful review of modern principles governing the interpretation of holograph wills, where it is common for a testator to use non-technical language. While the will in McCubbin v. McCubbin, 2026 ONSC 2079, was clear in its validity, it was less clear how the dispositive clauses were intended to operate together.
Background
The holograph Will at issue in McCubbin made the following statements:
“MY WISHES IN THE EVENT OF MY DEATH: LOUISE MCCUBBIN (SPOUSE) SHALL ASSUME OWNERSHIP OF THE FAMILY HOME AND CONTENTS AT 19 MCNAB AVENUE.
IN THE EVENT OF LOUISE’S DEATH, JULIE MCCUBBIN (DAUGHTER) AND NICOLA MCGOEY (DAUGHTER) SHALL UPON SALE OF THE AFORESAID RESIDENCE, RECEIVE EQUAL SHARES IN ANY EQUITY REMAINING AFTER ALL OUTSTANDING DEBTS ARE PAID.“
The testator’s surviving spouse argued that the Will gifted her the property outright and that the latter paragraph was merely a gift over provision of the property should the spouse pre-decease the testator. The spouse’s argument hinged on the Court accepting the meaning of the term “ownership” in this context as dispositive, and that the second clause only operated in the event the spouse predeceased the testator. In contrast, the testator’s children argued that construing the first clause as an absolute gift rendered the second clause meaningless, and that the Will should instead be read as creating a life estate.
Governing Principles of Will Interpretation
Referencing the often cited decision Baroski Estate v. Wesley, 2022 ONCA 399, the Court set out the core principles of Will interpretation as follows, and made no distinction between interpreting a formally valid Will and a holograph Will.
- A will must be interpreted to give effect to the intention of the testator. No other principle is more important than this one;
- A court must read the entire will, as a whole. The words used in the will should be considered in light of the surrounding circumstances (also known as the “armchair rule”);
- A court must assume that the testator intended the words in the will to have their ordinary meaning; and
- A court may canvas admissible extrinsic evidence to ascertain the testator’s intention.
Determining Whether the Will Gifted the Spouse the House or a Life Interest
A significant portion of the Court’s written analysis in McCubbin was related to the admissibility of extrinsic evidence. In the end, the Court accepted some extrinsic evidence as part of the surrounding context, but ultimately found that none of this evidence justified departing from the ordinary meaning of the words chosen by the testator and used in the Will.
The crux of the case therefore turned on the meaning of the phrase “assume ownership”, as used in the first clause in question. The Court reviewed a number of non-holograph Wills which had been subjected to similar disputes, and noted that a life interest was found only when the Will had clear language indicating as much. With this in mind, the Court rejected the children’s argument that a layperson would not understand the distinction between ownership and mere occupation. Applying the ordinary and grammatical meaning of the words used, the Court held that “ownership” connotes a broad bundle of rights inconsistent with a limited life interest.
Takeaways
To a certain extent, McCubbin complements prior decisions addressing the interpretation of holograph Wills, including Laframboise v. Laframboise, 2011 ONSC 7673. In Laframboise, the Court accepted that, when interpreting uncommon language in a holograph Will, greater weight ought to be given to the background, knowledge, and circumstances of the testator as the drafter of the document. Read together, McCubbin and Laframboise illustrate a consistent interpretive approach to holograph Wills: although courts will consider the testator’s personal circumstances when assessing specific word-choice, they will continue to place significant weight on clear and plain language where it is available and will not depart significantly from well-established principles of testamentary interpretation.