I was recently watching the excellent new show Extraordinary on Disney Plus when I was pleasantly surprised to see an estate litigation reference. For those of you who have not yet watched the show, the basic premise is that every person gains their own distinct superpower when they turn 18 years of age. As everyone has a superpower they are no longer special, with people using their powers for relatively mundane tasks. In the first episode we meet Carrie, whose superpower is that she can conjure the dead to speak through her. Needing to make money she takes a job at an estate litigation firm, using her power to conjure the recently dead individual to confirm what they actually wanted to happen with their estate after their death.
Being the cool guy that I am I immediately thought about how useful having someone with Carrie’s powers would be when trying to determine a testator’s intentions after death when interpreting a Will. Unfortunately for those of us living in the real world however, we need to use other methods to attempt to determine what the testator intended.
Browne v. Moody, [1936] 2 All E.R. 1695, confirms that the “golden rule” when interpreting a Will is to “give effect to the testator’s intentions as ascertained from the language which he has used”. The Ontario Court of Appeal in Dice v. Dice Estate, 2012 ONCA 468, confirms the court’s first task when interpreting a Will is to look is the wording of the will itself to see if from a plain reading of the Will the intentions of the testator can be ascertained.
When the testator’s intention cannot be ascertained from the “plain meaning of the language that was used”, the court may then consider the surrounding circumstances known to the testator when the will was made to see if this assists in determining the testator’s intentions. This process is known as the “armchair rule”, with the court in effect placing themselves in the position of the testator to determine what they believe the testator likely intended by the provisions. In discussing the “armchair rule”, the Ontario Court of Appeal in Dice v. Dice Estate states the following:
“Under this rule, the court sits in the place of the testator, assumes the same knowledge the testator had of the extent of his assets, the size and makeup of his family, and his relationship to its members, so far as these things can be ascertained from the evidence presented. The purpose of this exercise is to put the court in, as close as possible to, the same position of the testator [when] making his last will and testament.”
Although the armchair rule doesn’t offer us the same potential insights as conjuring the testator to ask them what they actually intended, it is the best tool we have to attempt to confirm the testator’s intentions after death. By placing themselves in the position of the testator, and assuming the same knowledge of the testator regarding things like their family relationships and their assets, the court’s sole job is to try to give effect to the testator’s intentions.
Thank you for reading.