I say the will means one thing, the executor says it means something else. I know the testator did not mean to disinherit me. How can I prove this?

  • The court must interpret the will to determine who the testator was referring to.
  • In order to answer this question, the court will try to put itself into the “armchair of the testator” and read the will in the context of the things known to the testator.
  • Statements of disappointed beneficiaries about the testator’s intentions are not admissible in court.
  • The judge can look at other evidence to show how the testator used words.

The primary evidence of the testator’s intention is the will itself.  The whole will, not just the ambiguous parts, must be considered.  If the meaning of the will is still unclear, then other evidence can be considered to assist the judge in determining what the words used mean. 

However, the evidence of disappointed beneficiaries about the testator’s intention is not admissible in court.  Even the testator’s statement of intention to the lawyer drafting the will is not admissible in court.

These principles were applied in one of our cases.  The will left a gift of the residue of the estate to the grandchildren and great-grandchildren.  It was not clear whether the step-grandchildren and step-great-grandchildren were included in the gift or not.

The judge held that they were not included.  A key piece of evidence was a list of beneficiaries found in the file of the lawyer who drafted the will.  Under the heading of “grandchildren and great-grandchildren” the testator had written down the names of her legal descendants, but not the names of the step-children.

Since this case was decided the Wills, Estates and Succession Act was enacted.  The new Act confirms that the court can look outside the will to interpret language that is ambiguous.  The Act also gives the court a new power to fix a will if the court determines that the will fails to carry out the will-maker’s intentions because of an accidental slip or omission, a misunderstanding of the will-maker’s instructions, or a failure to carry out the will-maker’s instructions.  In that case extrinsic evidence, including evidence of the will-maker’s intent, can be used to prove what the will-maker wanted to do through the will.

If you need help interpreting a will, contact us.

Read the case:  Lang Estate

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