de Vries Litigation
By Jonathon Vander Zee
August 30th, 2023
In the legal world, “testamentary intentions” refer to a person’s wishes for the administration of their estate and distribution of their assets after death.
The last will and testament (often referred to simply as a “will”) is the document which sets out the testator’s (i.e. the person who signed the will) testamentary wishes.
Problems arise when the will is unclear or equivocal. Since the testator is no longer alive to answer questions about her testamentary intentions, the executor may have to ask a judge for assistance in interpreting the will.
In order to determine the testator’s testamentary intentions, a judge focuses on the will itself. The judge’s ability to look at surrounding circumstances are limited. At this first stage, the judge will read the will in its entirety and attempt to determine its meaning using plain, consistent language.
The judge must be careful to limit their finding to what the testator intended, and not what the judge believes the testator ought to have meant.
In interpreting a will and in order to give effect to the testator’s intentions, the Court has the power to add or delete words to the will. The Court is able to do so (i) where a word or words are omitted; and (ii) where an incorrect word or words are used in the will.
Karen Watters, Partner, de Vries Litigation LLP
Interpreting a will is no easy task. The stakes can be high and one equivocation or drafting error can have devasting results for a disappointed beneficiary. Individuals with personal motivations cannot provide evidence of the testator’s intentions. It is important to recognize that not all evidence is admissible and when evidence is admitted, it will be closely scrutinized.
