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Estates - Wills - 'Armchair Rule'
COMMENT
The estate law 'armchair rule' is an interpretation doctrine which allows evidence of 'surrounding circumstances' (aka extrinsic evidence) to be adduced to the interpretation (aka 'construction') of a will. The doctrine - although not acknowledged as such - has been adopted broadly in contract interpretation law (which see), where evidence regarding such 'surrounding circumstances' can be adduced for contract interpretation.
. Kentros v. Kentros
In Kentros v. Kentros (Ont CA, 2026) the Ontario Court of Appeal dismissed an estates appeal, here brought against an order that rectified a will for lack of a 'remainderman clause'.
Here the court considers the estates law 'airchair rule':[50] When asked to interpret a will, a judge’s task is to determine the testator’s actual or subjective intention regarding the disposition of their property: Trezzi, at para. 13; Ross v. Canada Trust Company, 2021 ONCA 161, 458 D.L.R. (4th) 39, at para. 36. The court, sitting in the place of the testator, “assumes the same knowledge the testator had, at the time of making the will, in regard to the nature and extent of her assets, the makeup of her family, and her relationship to its members”: Ross, at para. 39. This “armchair rule” is the “over-arching framework within which a judge applies the various tools for will construction”: Ross, at para. 41.
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Relevant legal principles
[92] As noted earlier, in exercising the armchair rule, a court may consider both the terms of the will and evidence of the testator’s surrounding circumstances at the time the will was made. As a general rule, however, a court of construction cannot admit direct or extrinsic evidence purporting to prove the testator’s intention: Robinson ONCA, at paras. 23. The underlying rationale is twofold.
[93] First, the testator’s written will must be preserved as the primary evidence of their intention. The will should not be overridden by the direct evidence of third parties purporting to show the testator’s intent, adduced after the testator has passed and is no longer available to contradict it.
[94] Second, the court must be wary about the reliability of such evidence. In the absence of the general exclusion of direct extrinsic evidence about a testator’s intention, estate litigation would be littered with self-interested evidence from disgruntled beneficiaries claiming that they were supposed to receive certain bequests. As aptly observed by Justice Juriansz in Robinson ONCA, at para. 27, there would be “much uncertainty and estate litigation if disappointed beneficiaries … could challenge a will based on their belief that the testator had different intentions than those manifested in the will.”
[95] Exceptions to this general rule have been recognized. For example, extrinsic evidence may be admitted when there is an equivocation or latent ambiguity in the will, that is, the plain meaning of the words applies equally to two or more persons or things: Robinson ONCA, at para. 29, citing Feeney, The Canadian Law of Wills: Volume 2 Construction, 2d ed. (Toronto: Butterworths, 1982), at p. 56; Spence v. BMO Trust Company, 2016 ONCA 196, 129 O.R. (3d) 561, at para. 92, leave to appeal refused, [2016] S.C.C.A. No. 96 (although the latter was not a wills interpretation case). Another exception arises when the drafting solicitor admits to the error in the will and can testify to the testator’s instructions: Ihnatowych, at para. 36, citing Robinson ONSC, at para. 26.
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[97] The application judge noted the caution about extrinsic evidence in interpreting a will expressed by Justice Belobaba in Robinson ONSC, at para. 26:Courts are more comfortable admitting and considering extrinsic evidence of testator intention when it comes from the solicitor who drafted the will, made the error and can swear directly about the testator’s instructions. They are much less comfortable relying on affidavits (often self-serving) from putative beneficiaries who purport to know what the testator truly intended. . Jonas v. Jonas
In Jonas v. Jonas (Ont CA, 2022) the Court of Appeal considered the estate law 'armchair rule':(2) The application judge properly applied the “armchair rule”
[13] The application judge properly relied on the “armchair rule” in instructing herself on the process for interpreting the Will. This rule was set out by this court in Dice v. Dice Estate, 2012 ONCA 468, 111 O.R. (3d) 407, at paras. 36-38. The court must determine the testator’s intention as ascertained from the language that was used and the will as a whole. Where the intention cannot be ascertained from the plain meaning of the language used, the court may consider the surrounding circumstances known to the testator when making the will. The court sits in place of the testator and assumes the same knowledge they had of the extent of their assets, the size and makeup of their family, and their relationship to the family members, based on the evidence presented.
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