Interpretation of Wills

Wernicke v Quirk, 2011 SKCA 95 gives a helpful summary of the law regarding interpretation of wills and when surrounding circumstances may properly be considered:

[11] The principles to be applied to the interpretation of a will have been set forth in a number of cases. In Re Konanz Estate (1978), 88 D.L.R. (3d) 82 (Sask. C.A.), Culliton C.J.S. reiterated the interpretative principles to be applied to a will as stated in McDougall v. Neale, an unreported judgment of this Court, at p. 85 thereof:

In that judgment delivered on January 8, 1976, but unreported, the principles to be followed in interpreting a will so as to give effect as to the testator's intention were set out as follows:

"In construing a will so as to give effect to the testator's intention, the Court must be guided by the principles stated by Lamont, J. in Re Tyhurst: Smith v. The Trustees of the Home of the Friendless, 1932 CanLII 12 (SCC) <http://www.canlii.org/en/ca/scc/doc/1932/1932canlii12/1932canlii12.html> , [1932] S.C.R. 713 when at page 719 he said:

'In construing a will the duty of the court is to ascertain the Intention of the testator, which intention is to be collected from the whole will, taken together. Every word is to be given its natural and ordinary meaning and, if technical words are used, they are to be construed in their technical sense, unless from a consideration of the whole will it is evident that the testator Intended otherwise.... In construing the language of the testator where it is ambiguous, we are entitled to consider not only the provisions of the will, but also the circumstances surrounding and known to the testator at the time when he made the will, and adopt the meaning most intelligible and reasonable as being his intention.'

See also Perrin v. Mbrgau, [1943] A.C. 399 and in Re Browne, [1934] S.C.R. 324.

Again in construing a will recourse should not be had to rules of law or canons of construction if the testator's intention can be ascertained from the words of the will. In Hauck v. Schmaltz, [1935] S.C.R. 478 at page 481, Laront, J. stated this proposition as follows:

'For the purpose of ascertaining the intention of a testator the will is to be read in the first place without reference to or regard to the consequences of any rule of law or canon of construction. The words are to be given their usual and ordinary meaning, the particular passage concerned being taken together with whatever is relevant in the rest of the will to explain it.'

In construing a will, drawn by a layman, I agree with the views expressed by Sedgewick, J. in Re Duncan, 41 O.W.N. 175 at page 176:

'First it should be observed that the will was drawn by a layman. Therefore, that he must take the words employed not in any strict legal sense, but in the sense in which they would be employed by such a person as the testator, that is, with their ordinary or colloquial meaning.'

See also the observation of Tritscliler, J. (as he then was) in Re Kemp 11 W.W. R.N.S. 624."

[12] In Haidl (next friend of) v. Sacher, reflex <http://www.canlii.org/en/reflex/204740.html> , [1980] 1 W.W.R. 293, 106 D.L.R. (3d) 360, Bayda J.A. (as he then was) grappled with the question of when surrounding circumstances could be looked at to help construe a will. At pp. 296 and 302 he states:

The circumstances of this case and the issues addressed to us on appeal call for a consideration, at the outset, of this question:

Does the law require the "ordinary meaning" rule of construction to be applied to subparagraph (h) without admitting and taking into account any surrounding circumstances at all and that the meaning so ascertained shall prevail unless it is found that such an application produces a meaning which is unclear and ambiguous in which event such surrounding circumstances may then be admitted and looked at (procedure "A")? Or, does the law require those surrounding circumstances to be admitted at the start and that the "ordinary meaning" rule of construction be applied in the light of those surrounding circumstances (procedure "B")?

. . .

In the end, it must be said that the Canadian authorities tend to put forward procedure "B" as the proper approach. In my respectful view, it is the approach most likely to elicit the testator's intention and for that reason the more desirable approach. After all, ascertaining the testator's true intention is the real and only purpose of the whole exercise. Hence, the learned Chambers Judge, in the matter before us, did not err in admitting evidence of the testator's relationship to the beneficiaries named in his will, and particularly those mentioned in sub-paragraph (h) as part of the surrounding circumstances, in the light of which he then sought to interpret the testator's language by applying the "ordinary meaning" rule.

This approach has more recently been affirmed in Ratzlaff Estate v. Ratzlaff, 2002 SKCA 53 (CanLII) <http://www.canlii.org/en/sk/skca/doc/2002/2002skca53/2002skca53.html> , 2002 SKCA 53, 212 D.L.R. (4th) 258 by Vancise J.A. at paras. 35-36:

[35] . . . [T]he court has a right to ascertain all the facts which were known to the testator at the time he made the will and thus to place itself in the testator's position in order to ascertain the meaning and application of the language he uses. A probate judge is entitled to take into account the surrounding circumstances which existed at the time of the execution of the will in order to determine the proper construction of the will. . .

[36] . . . This approach is also consistent with what this Court stated in Haidl v. Sacher.

The correct approach in Saskatchewan is therefore to admit evidence of the surrounding circumstances at the start and to apply the "ordinary meaning" rule of construction in that context. Generally, only indirect evidence is admissible because the primary evidence of the testator's intention is the will itself. Courts will not give effect to direct declarations of intent, the effect of which would be to allow an oral will to override the probated will: James MacKenzie, Feeney's Canadian Law of Wills, looseleaf, 4th ed. (Markham, Ont.: LexisNexis Canada, 2000).