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Estates - Wills - 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 considered will interpretation, and the rectification remedy:[1] This appeal concerns a will that the drafting solicitor acknowledged did not reflect the testator’s wishes. The will was missing a remainderman clause. The bequests section gave the testator’s husband a life interest in two properties that the testator owned and provided that their two grandchildren should inherit the properties if her husband did not survive her for 30 days. The will did not, however, say who should get the properties at the expiry of the husband’s life interest should he survive the testator for more than 30 days.
[2] Sitting as a court of construction, the application judge concluded that the testator intended to give the properties to her grandchildren whenever her husband died. He ordered that language be inserted into the will to have this effect.
[3] The appellant contends that the application judge exceeded his limited powers as a court of construction and misapplied evidentiary rules. The appellants by cross-appeal agree that the testator intended to gift the properties to her grandchildren but argue that the application judge should have imposed a different remedy than rectification.
[4] For the reasons that follow, I would dismiss the appeal and the cross-appeal.
[5] This case reflects ongoing uncertainty in Ontario law regarding rectification after a will has been probated. The terms of the application judge’s order arguably exceeded his purely interpretive role as a court of construction. Properly construed in accordance with the testator’s wishes, however, the will gifts the two properties at issue to the testator’s grandchildren at the termination of her surviving spouse’s life interest, whenever that may be. Since the application judge’s order achieves this result, there is no reason to set it aside.
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[27] The application judge relied on this court’s guidance in Ihnatowych Estate v. Ihnatowych, 2024 ONCA 142, 493 D.L.R. (4th) 184, which endorsed the principles set out by Justice Belobaba in Re Estate of Blanca Esther Robinson, 2010 ONSC 3484 (“Robinson ONSC”), at paras. 24-25, aff’d 2011 ONCA 493, 106 O.R. (3d) 321 (“Robinson ONCA”), leave to appeal denied, [2011] S.C.C.A. No. 536. The application judge instructed himself that, to correct an error in a will, he must be satisfied that the “words of the will reveal the testator’s intention so strongly that no other contrary intention can be supposed”: Isard Estate v. Gunn, 2025 ONCA 139, at para. 10, citing Lipson v. Lipson (2009), 52 E.T.R. (3d) 44 (Ont. S.C.), at para. 42. Relying on Lipson, at para. 41, he concluded that he should consider both Effie’s 2017 will and evidence of surrounding circumstances, such as “the making of the will; the testator’s property at the time of the will; the testator’s use of property; the testator’s relationship to named and potential beneficiaries; and prior wills”.
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[29] The application judge also found that the presumption against intestacy supported rectification: Re MacDonnell (1982), 1982 CanLII 1844 (ON CA), 35 O.R. (2d) 578 (C.A.), at p. 582. ....
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[49] Absent an extricable error of law, the interpretation of a will in light of its surrounding circumstances is subject to review only for palpable and overriding error: Trezzi v. Trezzi, 2019 ONCA 978, 150 O.R. (3d) 663, at para. 15. I do not find any such error here.
Relevant legal principles
[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.
[51] In appropriate circumstances, a court will rectify a will to prevent the defeat of a testator’s intentions, in particular, in the face of errors or omissions by the will’s drafter: Ihnatowych, at para. 7, citing Robinson ONSC, at paras. 24-25. Evidence of surrounding circumstances should be taken into account before a court reaches any final determination of the meaning of words used in the will, “even if the words, themselves, do not appear to be ambiguous or unclear”: Zindler v. The Salvation Army et al., 2015 MBCA 33, 319 Man.R. (2d), at para. 14, cited approvingly by this court in Ross, at para. 41.
[52] A court of construction will interpret a will with a presumption against intestacy: if a will is “capable of two interpretation[s], one resulting in some or all of the property being incompletely disposed of and the other completely disposing of all of the testator’s property, it is presumed that the testator intended to dispose of [her] entire estate and did not intend to die intestate in respect of the whole or any part of the estate”: Oosterhoff, at p. 486. This presumption is especially strong if the testator purported to dispose of all of her property, for example, through a general residuary clause: Oosterhoff, at p. 486; Ian Hull and Suzana Popovic-Montag, Feeney’s Canadian Law of Wills, 4th ed. (Toronto: LexisNexis, 2000), at §10.75.
[53] However, “[t]he court will not give an unnatural or forced meaning to words in order to avoid an intestacy”: Oosterhoff, at p. 487. A court must find “as a matter of necessary implication that there was an omission and what the omission was”: Kilby v. Harmer Estate, 1964 CanLII 19 (SCC), [1965] S.C.R. 24, at p. 32, per Spence J. (dissenting).
[54] In Ontario, there is lingering uncertainty regarding the scope of the court of construction’s remedial powers.[3] It is settled law that a court of construction may disregard certain words that do not accord with the testator’s intention or read in certain words as part of an interpretive exercise via incorporation so that the will does accord with the testator’s intention: Oosterhoff, p. 264. In doing so, the court does not change the physical text of the will but rather interprets the probated will and declares its meaning: Oosterhoff, pp. 264, 539.
[55] Some caselaw suggests that a court of construction in Ontario may go further by ordering the insertion or subtraction of words from a probated will, as the application judge ordered here. Lipson, a construction case, is a notable example. Justice Pattillo stated at para. 32 that “[i]t has been long been established in Ontario that the court has the power to delete or add words to a will by necessary implication” and set out the criteria to do so. This approach in Lipson was cited approvingly by this court in Ihnatowych at para. 44, and relied on by the application judge in this case. Lipson was also cited by this court in Isard Estate.
[56] But both Ihnatowych and Isard Estate were probate cases. As already mentioned, this court affirmed in Neuberger Estate that the function of and evidentiary rules applicable to a court sitting in probate are distinct from those of a court of construction. Neither this principle nor Neuberger Estate is mentioned in Ihnatowych or Isard Estate.
[57] None of the parties to this appeal took issue with the principles articulated in Lipson and Ihnatowych, although Dino took issue with how the application judge had applied them in this case. Ontario’s jurisprudence has been criticized both in the academic literature and by the Manitoba Court of Appeal, however, for its failure to provide clear guidance on the court’s powers in construction as well as the role of extrinsic evidence.[4] In my view, either a five-judge panel of this court or legislative reform are needed to clarify the law in Ontario on these issues. Fortunately, for reasons explained below, this appeal can be resolved without such clarification. . 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.
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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.
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[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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