Tag: Armchair Rule
Mr. Moola (“the deceased”) died on August 2013. He died without a spouse or children. He was predeceased by his parents. He had 9 siblings: 5 of whom survived him, and 4 of whom predeceased him. Through his 9 siblings, he had 36 nieces and nephews.
The deceased died leaving a will. The will appears to be a “stationer’s will”: a preprinted will with certain blanks to be filled in by the testator. The residual clause of the will provided as follows (handwriting in italics, square brackets indicating possible symbols and punctuation):
I Give Devise and Bequeath all of my Real and Personal Estate of which I may die possessed in the manner following, that is to say: TO MY BROTHERS[‘][&] SISTER[‘]S LATE BROTHERS [&] SISTERS NEPHEWS [&] NIECES … .
The estate trustee applied to the court for directions with respect to the interpretation of this paragraph. The estate trustee submitted that there were at least 3 possible interpretations:
- Estate is to be divided into 9 shares, with one share going to each of the 5 surviving siblings, and one share divided amongst the children of each predeceased sibling;
- Estate divided into 45 shares, with one share going to each surviving sibling (5), one share to the estate of each predeceased sibling (4), and one share to each niece and nephew (36); or
- Estate divided into 41 shares, with one share going to each surviving sibling (5), and one share to each niece and nephew (36).
The court characterized the question as being whether the deceased intended a per capita distribution (equally to each sibling, niece and nephew), or a per stirpes distribution (equal to each branch of the family, with the children of a deceased sibling taking that share).
The court ultimately found that interpretation #1 was appropriate. In reaching this conclusion, the court noted that the “general rule” is to infer that the testator intends equality in distributions, and thus the court applies a presumption of per capita distributions when interpreting wills. However, this general rule can “yield”, depending on the circumstances. Where the distributions are to family members, a per stirpes distribution is usually found.
The court’s conclusion was supported by the “armchair rule evidence” to the effect that the deceased was devoted to his brothers and sisters, and their families. The court held that the wording of the will suggested that the deceased “was considering beneficiaries not so much as individuals but by households”.
The size of the estate is not clear from the reported decision. However, the judge noted that the deceased lived modestly and was conservative with his spending. However, he was very generous with his family, gifting and loaning “large sums” of money to family members. Large sums of money would likely have been necessary to bring the application for interpretation: all beneficiaries or potential beneficiaries were put on notice of the proceeding. Most lived in South Africa.
Alternate titles to today’s blog:
- “Once Again, A Handwritten Will Ends Up In Court for Interpretation”
- “How NOT to Save Money: Make Your Own Will”
- “Punctuation Matters”
Thank you for reading.
Recently, the Ontario Court of Appeal had the opportunity to consider the correct use of the “armchair rule” in will interpretations.
In Ross v Canada Trust Company, 2021 ONCA 161, the Court of Appeal was tasked with determining whether the motion judge’s use of the armchair rule to interpret provisions in a Will regarding the disposition of a cottage property was correct.
The motion judge interpreted the Will as directing the proceeds to be equally distributed amongst the Deceased’s four grandchildren. However, one grandchild disagreed with the interpretation, and argued that the proper interpretation would require the sale proceeds to be divided into five equal shares, with distribution of two shares to him, such that he would ultimately receive 40% of the sale proceeds, rather than the 25% that would result from the motion judge’s decision.
The respondents on the appeal cross-appealed. While they agreed with the judgment, they disagreed with the manner in which the decision was arrived at. In short, both parties submitted that the motion judged erred by resorting to the “armchair rule”.
In explaining the armchair rule, the Court of Appeal cites Ian Hull and Suzana Popovic-Montag’s description of the armchair rule in Feeney’s Canadian Law of Wills, 4th ed. (Toronto: LexisNexis, 2020) at 10.45 and 10.46:
“In the first instance, the court may be convinced that the testator’s intention can be discerned from the will itself. In such a situation, since the testator must be taken to have used the language of the will in view of the surrounding circumstances known to him or her when he or she made his or her will, evidence of such circumstances is necessarily admissible, at least insofar as it corresponds to the facts and circumstances referred to in the will. It seems obvious that a court might conclude that admissible evidence of surrounding circumstances is not helpful in determining meaning…The court puts itself in the position of the testator at the point when he or she made his or her will, and, from that vantage point, reads the will, and construes it, in the light of the surrounding facts and circumstances. This approach is commonly referred to as the “armchair rule”. [emphasis added].
The Court of Appeal rejected the arguments raised by the parties, and concluded that the interpretative methodology applied by the motion judge was sound. The Court found that where the motions judge could not discern the plain meaning of the Will’s language, the motions judge correctly took a step back to “consider the bigger picture” of the surrounding circumstances and applied the armchair rule. The court furthered that given the inconsistency that results from the two Will provisions in question, it was necessary to resort to the armchair rule.
The Court of Appeal ultimately held that the motion judge did not err in applying the armchair rule, the conclusion did not reveal any palpable or overriding error, and, the decision was well supported by the evidence.
Thanks for reading!