Reynolds Mirth Richards & Farmer
By Brad Smith
April 28th, 2025
A Cautionary Tale in Will Interpretation: Recent Alberta Court of Appeal Decision Serves as a Reminder of Important Principles in Interpreting Wills
When someone passes away, how do we know what they really intended in their Will? Alberta’s Wills and Succession Act tells us that Wills must be interpreted in a way that gives effect to the testator’s intentions. However, the law also recognizes that interpreting a Will, especially after the testator has passed, can be complicated.
The Alberta Court of Appeal’s recent decision in Ferguson Estate illustrates some of the particular challenges that can arise in attempting to interpret Wills.
The key issue in Ferguson Estate was whether the testator had gifted her company, Oro Brazos Minerals, to just one of her children, or whether it was her intention for all four of her children to share in the benefits and income from the corporation. The daughter who appealed the decision (the Appellant) argued that her mother had gifted her all the shares in the corporation back in 2010. But there were no supporting documents from that time, such as share certificates or deeds of gift, to verify her claim.
In July 2014, the mother made a Will stating that her four children should equally share in the royalty revenues from oil wells owned by the corporation. That raised a significant question: Had the shares actually been given to one daughter back in 2010? Or was that daughter simply holding them in trust, meaning the mother had never really given up her ownership, and the shares should form part of her estate?
This concept, where the property is presumed to be held in trust if it was not truly gifted, is known as a resulting trust and can often arise in estate matters, including with more common matters like joint bank accounts.
The Court of Appeal confirmed several important principles about how Wills should be interpreted…
The Court emphasized that the ultimate goal is to give effect to the subjective intention of the testator, that is, what they truly meant at the time. The Court also acknowledged that courts may draw common-sense inferences when deciding what the testator likely intended. Ultimately, the Court concluded that the mother intended all four of her children to benefit from the corporation’s royalties.
The Ferguson Estate decision highlights the complexity of interpreting Wills and determining someone’s intentions after they’re gone. Without clear language or supporting documentation, even seemingly straightforward wishes can become the subject of lengthy litigation.
