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Estates - Wills - Interpretation

. Ross v. Canada Trust Company

In Ross v. Canada Trust Company (Ont CA, 2021) the Court of Appeal considers the 'armchair' rule of will interpretation:
[37] The basic approach to the construction of a will was described by this court in Burke (Re), 1959 CanLII 113 (ON CA), [1960] O.R. 26 (C.A.), at p. 30:
Each Judge must endeavour to place himself in the position of the testator at the time when the last will and testament was made. He should concentrate his thoughts on the circumstances which then existed and which might reasonably be expected to influence the testator in the disposition of his property. He must give due weight to those circumstances in so far as they bear on the intention of the testator. He should then study the whole contents of the will and, after full consideration of all the provisions and language used therein, try to find what intention was in the mind of the testator. When an opinion has been formed as to that intention, the Court should strive to give effect to it and should do so unless there is some rule or principle of law that prohibits it from doing so.
[38] While a key element of Burke’s approach to will interpretation is, of course, studying the document’s contents – not only the provisions in dispute but the entire will – its approach also includes the use of what is known as the “armchair rule”. Ian Hull and Suzana Popovic-Montag, Feeney’s Canadian Law of Wills, 4th ed. (Toronto: LexisNexis, 2020) at §§10.45 and 10.46, describes the “armchair rule” as follows:
In the first instance, the court may not 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”.
[39] Sitting in the place of the testator, the court 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: Stuart v. Stuart, 2019 ONSC 4328, 49 E.T.R. (4th) 306, at para. 9; Dobson Estate v. Dobson (2000), 32 E.T.R. (2d) 62 (Ont. S.C.), at para. 8; Shamas (Re), 1967 CanLII 303 (ON CA), [1967] 2 O.R. 275 (C.A.), at p. 279, citing Perrin v. Morgan, [1943] A.C. 399 (U.K. H.L.), at pp. 420-21.

[40] In the past, courts usually have resorted to the “armchair rule” where the testator’s intention cannot be ascertained from the plain meaning of the will’s language: Dice v. Dice Estate, 2012 ONCA 468, 111 O.R. (3d) 407, at para. 37.

[41] More recently, courts are treating the “armchair rule” as an over-arching framework within which a judge applies the various tools for will construction at his or her disposal. As put by the Court of Appeal of Manitoba in Zindler, at para. 14:
Feeney’s [Canadian Law of Wills] concludes that “the most recent trend in Canadian cases seems to indicate that evidence of surrounding circumstances should be taken into account in all cases before a court reaches any final determination of the meaning of words” (at para. 10.54). This is true even if the words, themselves, do not appear to be ambiguous or unclear ...
. Barsoski Estate v. Wesley

In Barsoski Estate v. Wesley (Ont CA, 2022) the Court of Appeal cited rules of will interpretation, with a caution:
[21] The parties agree that the application judge correctly articulated the four fundamental and oft-cited principles that govern the interpretation of wills:
(i) a will must be interpreted to give effect to the intention of the testator. No other principle is more important than this one;

(ii) a court must read the entire will, as a whole. The words used in the will should be considered in light of the surrounding circumstances (also known as the “armchair rule”);

(iii) a court must assume that the testator intended the words in the will to have their ordinary meaning; and

(iv) a court may canvas extrinsic evidence to ascertain the testator’s intention.

[23] The challenge for any judge interpreting a will is the fact that the case law is of limited assistance precisely because of the importance of the testator’s own intentions and of the wide range of factors that may be taken into account in discerning those intentions. While the authorities generally cite the same accepted principles, they often reach apparently irreconcilable results.

[24] On the distinction between life interests and licences, the application judge summarized the cases as follows:
These decisions alternately concluded that the grants of the property were a life estate or a licence. Counsel agreed that there is no overarching principle that reconciles the results in these decisions. Since the meaning of words in wills can differ so much according to the context and circumstances in which they are used, it seldom happens that the words of one instrument are a safe guide in the construction of another. Each case is an authority only on the facts involved, except in so far as it may set forth or explain any applicable rule of construction or principle of law: Kaptyn Estate, Re, at para. 32.
. VanSickle Estate v. VanSickle

In VanSickle Estate v. VanSickle (Ont CA, 2022) the Court of Appeal considered an issue of will interpretation, including the standard of review applicable:
[1] This appeal concerns the interpretation of a will. The testator, Dorothy VanSickle, provided one of her children with an option to purchase “the farming business carried on by me” in Brantford for $85,300. Four of the other children argued that the testator had ceased carrying on the farming business many years earlier, the option to purchase had therefore lapsed, and the farm should fall into the residue of the estate. Howard, the beneficiary of the option, disagreed.

[2] On an application for directions, the application judge agreed that “the farming business” had ceased. For the reasons set out below, we would allow the appeal.


[8] As this court has recently observed, the standard of review of an application judge’s interpretation of a will is the same as of a contract: Trezzi v. Trezzi, 2019 ONCA 978, 150 O.R. (3d) 663, at para 15. The findings of an application judge in interpreting the will in light of all the surrounding circumstances to determine the subjective intentions of the testator that it conveys, are findings of mixed fact and law entitled to appellate deference, absent an extricable error of law or palpable and overriding error.

[9] We are of the view that the application judge made an extricable error of law in failing to apply the presumption set out in s. 22 of the Succession Law Reform Act, R.S.O. 1990, c. S.26, that “[e]xcept when a contrary intention appears by the will, a will speaks and takes effect as if it had been made immediately before the death of the testator with respect to … the property of the testator”.


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Last modified: 24-11-22
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