Interpretation of Wills in Ontario
The interpretation of wills is governed by the general principles of testamentary construction developed by courts of equity and theSuccession Law Reform Act, R.S.O. 1990, c. S.26 (SLRA). The overriding objective of will interpretation is to give effect to the testator's intention — courts do not apply rigid rules of construction where the testator's meaning is reasonably clear.
The Armchair Rule
The armchair rule requires the court to place itself in the position of the testator at the time of making the will and consider the surrounding circumstances known to the testator. The court reads the will as a whole to determine the testator's intention and may consider:
- The family and property circumstances of the testator at the date of the will;
- The relationship between the testator and the beneficiaries;
- The testator's prior wills and codicils;
- The testator's known purposes and objectives (where these can be discerned from the will itself or from clear surrounding circumstances).
The court does not receive direct evidence of the testator's oral declarations of intention — the armchair rule provides background context, not a substitute for the words of the will.
Patent and Latent Ambiguity
A patent ambiguity is one apparent on the face of the will — two possible meanings emerge from reading the text alone. A latent ambiguity arises when applying the will to the actual facts reveals an uncertainty (for example, the testator bequeaths "my house on Elm Street" but owns two houses on Elm Street).
Ontario courts may admit extrinsic evidence to resolve both patent and latent ambiguities — the surrounding circumstances may be considered to assist in determining what the testator intended. Direct declarations of intention remain inadmissible to vary clear language, but are admissible where ambiguity exists.
Preference Against Intestacy
Where two interpretations of a will are equally reasonable, courts prefer the interpretation that avoids intestacy — either partial or total. The court presumes that a testator who took the trouble to make a will intended to dispose of the whole estate, and will not lightly conclude that part of the estate passes on intestacy.
Rectification of Wills: SLRA Section 21.1
Section 21.1 of the SLRA (added by the Strengthening, Protecting and Saving Lives Act, 2021, S.O. 2021, c. 4) gives Ontario courts the jurisdiction to rectify wills that fail to carry out the testator's intentions because of:
- An error by the person who drafted the will (clerical error, transcription error, or failure to give effect to the testator's instructions); or
- A misunderstanding of the testator's instructions by the drafter.
Rectification corrects the error in expression — the court gives effect to what the testator actually intended to say, not what they said. Courts will not use rectification to change the testator's intention or to give effect to instructions the testator did not give. The burden is on the applicant to establish on clear and convincing evidence both the error and the testator's true intention.
Procedural note: Applications for rectification must be made within 30 days of the appointment of the estate trustee, unless the court grants an extension.
Intestate Succession
Where a person dies without a valid will, or where a will fails to dispose of part of the estate, the estate passes on intestacy under the SLRA, Part II.
Distribution on Intestacy: SLRA Section 44
The distribution scheme under Part II (as of January 1, 2022, after theAccelerating Access to Justice Act, 2021 amendments):
- Spouse only (no issue): spouse takes the whole estate;
- Spouse and one child: spouse takes the preferential share ($350,000) plus one-half of the remainder; the child takes the other half;
- Spouse and two or more children: spouse takes the preferential share ($350,000) plus one-third of the remainder; children share two-thirds equally;
- No spouse, children only: children share equally;
- No spouse, no children: parents, then siblings, then nieces and nephews, then next of kin (by degree of consanguinity).
Common-law partners and unmarried spouses do not inherit on intestacy in Ontario — only married spouses benefit from the preferential share and intestate distribution. Unmarried partners must pursue dependant support claims or unjust enrichment claims.
Partial Intestacy
A testator may die partially intestate — where a will disposes of some but not all of the estate. The undisposed portion passes on intestacy under Part II. Common causes of partial intestacy include: failure of a residuary gift (for example, the residuary beneficiary predeceases); a lapsed specific bequest where there is no substitutionary gift; and failure to provide for after-acquired property.
Dependant Support Claims: SLRA Part V
Part V of the SLRA gives courts the jurisdiction to make an order for the support of a dependant who has not been adequately provided for under the will (or on intestacy). A "dependant" is defined in s.57 to include: a spouse, a parent, a child, and a sibling to whom the deceased was providing support or was under a legal obligation to provide support.
The court assesses whether the deceased made adequate provision for the dependant having regard to all the circumstances, including: the dependant's current circumstances and needs; the size and nature of the estate; the moral claims of other beneficiaries; and the testator's reasons for the disposition (if available). The support order is limited to amounts required for dependants' support — it is not a share of the estate to which the dependant has an entitlement.
Challenges to Wills
Lack of Testamentary Capacity
A will is valid only where the testator had testamentary capacity at the time of execution. The test from Banks v Goodfellow (1870) LR 5 QB 549, adopted in Ontario, requires that the testator:
- Understand the nature of making a will and its effects;
- Understand the extent of the property being disposed of;
- Understand the claims of persons who might be expected to benefit;
- Not suffer from a disorder of the mind that poisons the affections, perverts the sense of right, or prevents the exercise of the natural faculties in disposing of the property.
The person propounding the will has the burden of proving testamentary capacity on a balance of probabilities. Where suspicious circumstances are established, the burden becomes heightened.
Undue Influence
A will may be set aside where it was procured by undue influence — coercion or domination that overpowered the testator's free will. Undue influence in the testamentary context requires more than persuasion, pressure, or appeals to the testator's emotions; it requires coercion that overcame the testator's own wishes. The person challenging the will bears the burden of proving undue influence on a balance of probabilities.
Practice Points for Ontario Estates Lawyers
- Review the will for patent ambiguities before administering the estate — an ambiguous clause should be resolved by court application or inter partes agreement before distribution.
- Where the testator's instructions appear to have been incorrectly expressed or the drafter made a clerical error, advise the estate trustee of the s.21.1 rectification jurisdiction and the 30-day application deadline.
- Identify all potential dependants at the outset — any person providing or receiving support may have a Part V claim, and the estate should not be fully distributed until the six-month limitation period for dependant support applications has expired.
- Common-law partners do not inherit on intestacy — advise cohabiting clients to make wills; advise bereaved common-law partners of their right to bring a dependant support claim and unjust enrichment action.
- Where suspicious circumstances arise (recent will change, testator in poor health, beneficiary involved in drafting), take careful instructions, obtain a contemporaneous capacity assessment, and document the absence of undue influence before completing execution.