How Does the Court Interpret An Unclear Will?


In an ideal world, all people would have a clear and unambiguous will in place at the time of their death; however, this is not always the case. In the recent case of Re Brooks Estate the B.C. Supreme Court faced a situation of having to interpret an incomplete and unclear will and, in doing so, set out the principles that should be followed in such cases.

Robert Brooks died in March 2010 leaving a handwritten, half-page will. The will was dated and properly witnessed. The bulk of Robert’s estate consisted of a house in Meritt, valued at $133,300, and two bank accounts with a total value of $144,000. The residual of the estate was made up of personal effects and household furnishings valued at $500.

The dispositive provisions of the will began as follows:

I leave my property [address and legal description of the real property] to my brother George Brooks [address] Executor with Power of Attorney. Also my accounts at Royal Bank of Canada Merritt B.C.

Robert then listed the names and addresses of his five friends, followed by the statement:

I would all the people named above share equally in my estate.

George took the position that the first clause was intended to effect specific gifts of the house and bank accounts to him, and that the other five beneficiaries were to divide the residue of the estate. The other five beneficiaries argued that the reference to “Executor with Power of Attorney” in the first clause meant that George was to take possession of the assets only in his capacity as executor. According to them, they were to share equally in Robert’s estate, with George receiving nothing.

In attempting to resolve the intent of the will, Mr. Justice Nate Smith set out a summary of the law to be considered when the court is tasked with the construction of a will:

  1. The court is to give effect to the intention of the testator. This is normally accomplished by giving fair and literal meaning to the actual language of the will.
  2. The court should make every effort to reconcile conflicting provisions of a will rather than absolutely ignoring one in favour of the other.
  3. Where there is an obvious ambiguity or omission, the court may ignore, add or substitute words, but only to a very limited degree and only when the intention is plain and clear. Further words must not be read in unless one can be reasonably certain from the context of the will itself what the words that have been omitted are.
  4. If the court is unable to resolve the construction of the will based upon the foregoing principles, extrinsic evidence may be used to resolve ambiguity. If this becomes necessary, the judge must try to place him or herself in the position of the testator at the time when the will was made, concentrating on the testator’s thoughts on the circumstances which then existed and which might reasonably be expected to have influenced the testator in the disposition of his or her property. Due weight must be given to circumstances that would bear on the intention of the testator. The will should be considered in its entirety and, after full consideration of all of the provisions and the language used in the will, the court will try to find the intention that was in the mind of the testator. Once an opinion has been formed as to that intention, the court will strive to give effect to it, and should do so unless there is some rule or principle of law prohibiting it from doing so.

In the case of Robert Brooks’ will, the Court concluded, having regard to the language of the will and the principles set out above, that the will intended to divide all of Robert’s estate (including the house and the bank accounts) equally among George and the other five named beneficiaries.