A paper on Interpretation Applications recently presented at Practice Gems: The Administration of Estates 2011: Avoiding the Pitfalls contains a discussion of the nature of such applications and their procedural implications. As part of the discussion, case law applicable to the types of questions that can be asked of a court in interpretation applications is reviewed. A short summary of the points made in the paper are:
– applications for the opinion, advice and direction of the court are effective procedures to clarify ambiguous provisions of a testator’s will;
– both the substance and form of the questions brought before the court are crucial to a successful application;
– the questions should only deal with practical problems, rather than academic or future concerns;
– the questions should be structured to receive a "yes" or "no" answer; and
– judges are not prepared to assume the role of the estate trustee – they are concerned with fundamentally legal matters and will not usurp the executor’s responsibilities.
The test for rectification is also briefly reviewed – the equitable power of the court to correct errors or ommissions which compromise the testator’s true intentions.
All in all this is a succinct and helpful paper for practitioners to review when commencing interpretation applications.
Have a good day,
Natalia R. Angelini – Click here for more information on Natalia Angelini.