Tag: direct evidence
In McCarthy Estate (Re), 2016 CanLII 87407 (NL SCTD) the executor of his mother’s estate was seeking directions on the meaning of a clause in the Will. Clause 5(a) of the Will gifts the residue of the estate as follows:
“to my children, namely … a building lot to be sized and located in accordance with the development regulations … and to be chosen in consultation with my Executor from my land at Paradise Road…”
The executor offered to convey a residential building lot of the minimum size permitted in the town’s regulations to each of his named siblings. Some of the siblings disagreed, asserting that “a building lot” should be given the widest and most liberal interpretation, and not interpreted as one of the minimum size permitted. Alternatively, they argued that their mother intended that each child should receive a parcel the same or similar in size to parcels conveyed to certain other children during their mother’s lifetime.
The executor argued that the Will is not ambiguous. Rather, it contains three directions, including that the executor is given the discretion to choose the size and location of each lot after consultation with the beneficiaries.
The Court reviewed the applicable legal principles, being that it must look to the language of the Will to ascertain whether the testator’s intention can be discerned from the natural and ordinary meaning of the words used. Only if this is not p
ossible may the court consider indirect extrinsic evidence of surrounding circumstances at the time of making the Will. Further, where an “equivocation” occurs (eg. where the words of a Will apply equally well to two or more persons or things), direct and indirect evidence of the testator’s actual intention may also be admitted.
The Court concluded that the language of the Will was not equivocal, such that direct extrinsic intention evidence was not permitted. In addition, it found that the intention was discernible from the language of the Will, such that it was not necessary for indirect extrinsic evidence of surrounding circumstances to be considered. However, as the parties had provided such evidence, the Court reviewed it and was satisfied that the interpretation of Clause 5(a) and the surrounding circumstances also lead to the conclusion that a conveyance as proposed by the executor was in conformity with the mother’s intentions.
Thanks for reading,
Natalia R. Angelini
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