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Admissible Evidence in Construing Wills

Lorne Hicklin owned and operated a garage business, Hicklin Motors, with his brother, James. They were business partners, but did not socialize together. Lorne had two daughters, Deanna and Sherri. He also owned a house, which contained typical household furnishings, and an attached garage in which he kept four motor cycles, a motor cycle trailer and other personal property. He also owned a tax free savings account and certain bank accounts. He instructed his solicitor to prepare a will for him and told him that he wanted to leave his home to his two daughters equally and everything else to his brother James. He named James his executor and trustee.

The dispositive part of the will read:

(B) To transfer my home to my daughters, Deanna and Sherri, in equal shares absolutely.

(C) To transfer the residue of my Estate to my brother, James Hicklin, absolutely; provided that should my brother predecease me then the residue of my estate shall be transferred to my sister, Suzie Lalonde, absolutely; provided further that should my sister predecease me then the residue of my estate shall be transferred to my daughters, Deanna and Sherri, in equal shares, absolutely.

These are the bare facts in Hicklin Estate v. Hicklin.[1] They seem straightforward, but they weren’t, because a question arose about the meaning of the word “home”. The brother claimed that all of the testator’s personal property belonged to him, whereas his daughters asserted that, except for their father’s interest in Hicklin Motors, they were entitled to all of their father’s personal property as well as his house and garage and the property on which they stood. Deanna brought an application to the court to resolve the dispute.

The case raised a number of issues, including the standard of review in a wills case and whether the judge of first instance committed a reversible error. However, the main issue was what kind of evidence the court can consider in construing a will.

The common law had a long-established tradition which maintained that a court must initially construe a will without regard to any evidence other than the will itself. When the court has done so, it inquires whether there are subjects and objects that match the description of those in the will and, if there are, that is the end of the matter. Evidence of surrounding circumstances showing that the testator meant something else is excluded. To admit such evidence was thought to amount to making a will for the testator, which is impermissible.[2] This approach to construing a will is referred to as the strict construction, or  objective, approach and sometimes as the nineteenth century approach. More often than not it defeated the testator’s intention and led to ludicrous results. National Society for the Prevention of Cruelty to Children v. Scotland National Society for the Prevention of Cruelty to Children[3] is such a case. The testator left a substantial gift to the NSPCC. There was an organization of that name, but it was an English society whose work was restricted to England. There was also another society called the Scottish NSPCC, which operated exclusively in Scotland. The testator was a Scot, who lived in Scotland, all his interests were Scottish, his moneys were invested there, and he left all his other properties to Scottish charities. Obviously, he wanted this gift to go to the Scottish NSPCC, but the House of Lord held that the English society should receive the gift.[4] Canadian case law is replete with examples of the strict construction approach.[5]

Lord Denning M.R. once famously said this in dissent about the strict construction approach:[6]

It seems to me that the fallacy in that argument is that it starts from the wrong place. It proceeds on the assumption that, in construing a will, ‘It is not what the testator meant, but what is the meaning of his words’. That may have been the nineteenth-century view; but I believe it to be wrong and to have been the cause of many mistakes. I have myself known a judge to say: ‘I believe this to be contrary to the true intention of the testator but nevertheless it is the result of the words he has used’. When a judge goes so far as to say that, the chances are that he has misconstrued the will.

According to Lord Denning, a Chancery judge was once said to have remarked that a group of dissatisfied testators wait on the other side of the river Styx to receive the judicial personages who have misconstrued their wills, presumably to take out their wrath on them.[7]

Under the strict construction approach a word or expression would be ambiguous only if it did not match external subjects or objects. And it was only in those circumstances that the court was permitted to consider evidence of surrounding circumstances at the time the will was made. However, direct evidence of what the testator intended was not admissible unless the gift was in favour of a person the testator knew to have been deceased when he made the will, or if there was an equivocation, which exists when the description of the person or the property in the will applies equally to two or more people or properties.[8]

However, although one still comes across cases that apply the strict construction approach, the pendulum swung the other way several decades ago in favour of the more liberal, subjective approach. This approach was already foreshadowed by the judgment of Idington J. in Marks v. Marks[9] and it was followed in modern cases. Perrin v. Morgan[10] is another early case. The testator directed that “all moneys of which I die possessed” should be shared among his nephews and nieces. The issue was whether “moneys” meant only cash, or included also investments, dividends, rents, and other personal property. If only cash, the nephews and nieces would have got very little. The House stated that when interpreting a will the court must give the words used in the will the meaning that, having regard to the terms of the will, the testator intended. It held that in the circumstances of the case the word “moneys” included all of the testator’s personal property, but not his real property. Haidl v. Sacher[11] is a prime example of the subjective approach. It held that under this approach the court can consider extrinsic evidence immediately when it commences construction of a will. In other words, the court can, to use the colourful metaphor, “sit in the testator’s armchair”, the one he supposedly occupied when he made his will, right away.[12]

The judge of first instance in Hicklin, Yamauchi J., was aided greatly by affidavit evidence from a very close and long-term friend of the testator. The friend deposed that the testator always told him that he was giving Hicklin Motors to his brother, but all other personal property to his two daughters, except for one motor cycle. The evidence was also clear that the testator had a close relationship with his daughters. Indeed, he left them the residue if his brother and his sister Suzie predeceased him. Therefore, in in the end Yamauchi J concluded that “home” included not only the house and garage, but also the testator’s personal property found in them. However it did not include personal property not found in the house and garage, such as the tax free saving account. Those went to the brother.

Although this interpretation assigns a very broad meaning to the word “home”, it was undoubtedly the right one on the facts. However, the result may still not have been what the testator intended according to the affidavit evidence. It seems that the drafter simply inserted the testator’s actual words, “my house”, into the will without inquiring what the testator meant by that phrase. Had the solicitor made the appropriate inquiries and drafted the will accordingly, the result might well have been different.[13]

Justice Yamauchi considered the modern case law on the construction of wills, but he was also aided by a provision on the Wills and Succession Act.[14] Section 26 of the Act provides:

26. A will must be interpreted in a manner that gives effect to the intent of the testator, and in determining the testator’s intent the Court may admit the following evidence:

(a) evidence as to the meaning, in either an ordinary or a specialized sense, of the words or phrases used in the will,

(b) evidence as to the meaning of the provisions of the will in the context of the testator’s circumstances at the time of the making of the will, and

(c) evidence of the testator’s intent with regard to the matters referred to in the will.

This provision thus codifies the modern subjective approach to construing a will.[15] Although the Court of Appeal stated that s. 26 governed the case, it also noted that the section is consistent with the case law from other jurisdictions. Hence, the case is persuasive authority also in jurisdictions that lack such a statutory direction.[16]

The appeal judgment is identified as having been written per curiam. It is delight to read, for it is an erudite and learned disquisition on the topic of the admissibility of extrinsic evidence. And thereby it reminds us that the legal profession is a learned profession, as Sachs and Buckley L.JJ. emphasized in Incorporated Council of Law Reporting for England and Wales v. Attorney General.[17] Moreover, the judgment is a model of stylistic clarity. Hence it is not surprising that it contains a number of references to well-known works on English usage, interpretation of legal texts, and dictionaries.[18] It contains copious references to earlier and more modern case law in the endnotes. Would that more of our judgments were so clearly written!

I shall not discuss the appeal judgment in detail. For that the reader should read the judgment itself. But I quote Sections II and III and the four fundamental principles identified in the judgment, because they state succinctly what the case is all about and how it should be decided:

II. Questions Presented

2 What is the standard of review in a wills case?

3 A court interpreting a will must ascertain the testator’s intention. How does a court do this?

4 May a court rely on extrinsic evidence? If so, when?

5 The will declared the testator’s intention to leave his “home to my daughters” and the “residue of my Estate to my brother”. What did the testator mean when he bequeathed his “home” to his daughters?

6 Does the word “home” bear more than one plausible meaning?

7 Did the testator intend his daughters to inherit only his real property – the home and the land on which it was located?

8 Or did he also intend to give his daughters his personal property that was found either in the residence or the attached garage on his death that contributed to his enjoyment of his home?

9 Did Justice Yamauchi commit a reversible error in concluding that the daughters inherited their father’s four motorcycles, motorcycle trailer, truck and other personal property found in the garage and all the personal property found in the testator’s residence – items that must have contributed to the testator’s enjoyment of his residence – as well as the residence and the attached garage and the land on which these structures are located?

III. Brief Answers

10 An appeal court may set aside the meaning the original court gives to a will if the original court misunderstood the governing principles for the interpretation of a will or applied the correct principles but committed a palpable and overriding error in interpreting the contested text.

11 A court interpreting a will must give effect to the testator’s intention. This is a subjective test. The chambers judge understood this.

12 A court must read the entire will and give the contested text its ordinary meaning. In the absence of clear evidence to the contrary, the testator is presumed to have selected words to convey his or her intention using their ordinary meanings. A party that asserts a contrary intention must satisfy the court on a balance of probabilities that the testator attached to the contested words a meaning other than their ordinary meanings. The chambers judge understood this.

13 If the text may bear more than one plausible meaning, the court must select the one that best promotes the testator’s intention. The chambers judge understood this.

14 A court may rely on extrinsic evidence that assists it to ascertain the testator’s intention. The context which surrounds the will-making act may provide valuable insights into the testator’s intention when selecting words to convey his or her meaning. There are no onerous preconditions to the admissibility of extrinsic evidence. The chambers judge properly relied on some extrinsic evidence.

15 The noun “home” in this context can bear two plausible interpretations. One is broader and more inclusive than the other.

16 Read broadly, it includes not only the testator’s residence, garage and the land on which these structures were located, but also personal property owned by the testator and located on the land that contributed to the testator’s enjoyment of his home.

17 Read narrowly, it includes only the testator’s residence, garage and the land on which these structures are located – real property – and excludes personal property, without regard to whether the testator kept it in his home or garage or elsewhere, and the enjoyment he derived from it.

18 Justice Yamauchi did not commit a palpable and overriding error in concluding that the testator intended “home” to have a broad meaning. The beneficiaries of this broad reading are the testator’s daughters and it is eminently reasonable to conclude that he intended to generously provide for them. This is the reading that best promotes the testator’s intention. Both the text of the will and the extrinsic evidence support the conclusion that the testator had a warm relationship with his daughters at the time he made his will. The fact that they would inherit his entire estate if the testator’s brother and sister predeceased him – not an unlikely event given the ages of the testator and his siblings – is additional confirmatory evidence of the testator’s desire to secure his daughters’ welfare after his death.

The judgment then explores the issues and gives a thorough analysis of them. It states four fundamental principles that govern the interpretation of wills:

48 First, a will must be interpreted to give effect to the intention of the testator. No other principle is more important than this one.

49 Second, a court must read the entire will, just the same way an adjudicator interpreting a contract or a statute must read the whole contract or statute.

50 Third, a court must assume that the testator intended the words in the will to have their ordinary meaning in the absence of a compelling reason not to do so.

51 Fourth, a court may canvas extrinsic evidence to ascertain the testator’s intention.

It would be supererogatory for me to expand on these quotations, but they are fleshed out in the balance of the judgment. I suggest tolle lege (take up and read).[19] You will be enlightened and will not be disappointed.

Hicklin Estate v. Hicklin, 2019 ABCA 136 (CanLII)

[1]    2019 ABCA 136, affirming 2017 ABQB 318.

[2]    See Higgins v. Dawson, [1902] A.C. 1 (H.L.) at 6, per Earl of Halsbury L.C.

[3]    [1915] A.C. 207 (H.L.).

[4]    For other examples, see Oosterhoff on Wills, 8th ed. by Albert H. Oosterhoff, et al. (Toronto: Thomson Reuters/Carswell, 2016), §13.6.2(a).

[5]    See, e.g., Augur v. Beaudry (1919), 48 D.L.R. 356 (P.C.); Re Warren (1922), 52 O.L.R. 127 at 129 (H.C.), per Middleton J.; Re Sheard (1921), 58 D.L.R. 539, 49 O.L.R. 320 at 327 (C.A.), per Meredith J.A.; Re McIntosh, [1923] 2 W.W.R. 605 at 606 (Man. K.B. [In Chambers]), per Dysart J.; Tottrup v. Patterson (1969), [1970] S.C.R. 318 at 322, (sub nom. Re Ottewell) 9 D.L.R. (3d) 314 at 316, per Cartwright C.J.C.

[6]    Re Rowland, [1963] 1 Ch 1 (C.A.) at 9-10.

[7]    Re Rowland, loc. cit.

[8]    See Oosterhoff on Wills, supra, §13.6.3.

[9]    (1908), 40 S.C.R. 210 at 212-13.

[10]   [1943] A.C. 399 (H.L).

[11]   (1979), 106  D.L.R. (3d) 360 (Sask. C.A.).

[12]   In passing I note that the modern approach to interpreting inter vivos trusts is the same. It also allows the court to consider surrounding circumstances immediately. See, e.g., Millar v. Millar, [2018] EWHC 1926 (Ch.) at paras. 17 and 23, per H.H.J. Paul Matthews, who applied the modern approach to interpreting commercial instruments also to trusts. And see R.P. Johnson Family Trust (Trustees of) v. Johnson, 2014 BCSC 1889 at para. 13, where the court stated that a court should construe a trust deed, read a whole, in light of the surrounding circumstances known to the settlor at the time the trust was created. See also Inland Revenue Commissioners v. McMullen, [1981] A.C. 1 (H.L.) in which Lord Hailsham of St. Marylebone said in dictum that in construing trust deeds, including a deed that establishes a charitable trust, the court should give the deed a benign construction if possible.

[13]   See Hicklin, appeal judgment, para. 34 and endnote 19.

[14]   S.A. 2010, c. W-12.2.

[15]   For similar legislation, see Wills, Estates and Succession Act, S.B.C. 2009, c. 13, s. 4.

[16]   Hicklin, appeal judgment, para. 55.

[17]   [1972] Ch. 73, [1971] 3 All E.R. 1029 (C.A.).

[18]   Such as Garner’s Modern English Usage (4th ed. 2016); A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Text 30 (2012); F. Lieber, Legal and Political Hermeneutics, or Principles of Interpretation and Construction in Law and Politics (en. ed. 1839); Webster’s Third New International Dictionary of the English Language Unabridged (2002); and The Oxford English Dictionary (2d ed. 2005)

[19]   As Augustine of Hippo was also invited to do.

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