Will drafters are not perfect. Sometimes the language the drafter uses in a will just isn’t clear enough or has some ambiguity that requires interpretation. Madam Justice Dardi's decision in Re: Theimer Estate 2012 BCSC 629 does a great job in looking at the many principles that Courts use in trying to interpret ambiguous or unclear will provisions. The “Armchair Rule” is one of the main rules judges will use in will interpretation. To summarize the main points from Madame Justice Dardi’s decision:
· Under the Armchair Rule the Court tries to put itself in the “armchair” of the testator so they can see the Will and
understand its wording through the testator's eyes.
· In construing a will, the objective of the court is to ascertain the intention of the testator as expressed in his or her will when it is read as a whole in light of any properly admissible extrinsic evidence;
· The testator's intention is to be gathered from the will as a whole and not solely from those provisions which have given rise to the controversy;
· The subjective approach to interpreting wills, where the objective is to ascertain the actual meaning the testator ascribed to the words he or she used in the will, is the modern approach to will interpretation;
· Courts have adopted the “Armchair Rule" which requires that the court to put itself in the position of the testator at the point in time when he or she made the will (not at the time of death), and from that vantage point construe the language in the will in light of the surrounding facts and circumstances known to the testator at that time;
· The main source of evidence should come from the “four corners" of the will (meaning you simply look at the writing in the will), but the armchair rule entitles the court to look to extrinsic evidence to identify the surrounding circumstances known to the testator at the time the will was made which might reasonably be expected to influence the testator in the disposition of his or her property. For example, the court can look at the occupation of the testator, the state of his property and the general relationship of the testator to his or her immediate family and other relatives.
· The modern judicial approach to interpreting a will is to admit all the evidence regarding the surrounding circumstances at the start of the hearing and then to construe the will in the light of those surrounding circumstances.
As it can be seen, the real key for anyone looking to have a will interpreted is putting before the Court a clear picture of who the testator was and what made him or her tick (the arm chair rule might be called the “walk a mile in my shoes rule”). It is through this understanding that Courts will be able to best interpret what a testator meant by the words used in his or her will.
~ Mark Norton