Blog by Henry Howe of case review by Kimberly Whaley for STEP Toronto, September 2019
In Hicklin Estate, the Alberta Court of Appeal addressed the ambiguous use of the word “home” in a testator’s will. The court listed four guiding principles of will interpretation, and focused its analysis on two main points: what the word “home” is ordinarily understood to mean, and what the testator himself was likely to have intended when he had used that word. Ultimately, it upheld the lower court’s ruling that the testator’s “home” included not only the premises at which he had lived, but also personal property located there.
Lorne Hicklin (“Lorne”) left his “home” to his two daughters, and the residue of his estate to his brother (“James”). The court noted that Lorne had close personal relationships with his daughters, but largely maintained only a business relationship with James. James was the estate trustee, though he did not know this before Lorne’s death.
After James was granted probate, he and Lorne’s daughters made competing claims to inherit Lorne’s personal property, which included several vehicles in his garage (including four motorcycles), some scrap metal that was located elsewhere, and bank accounts. One of the daughters applied to the Court of Queen’s Bench for a resolution to this dispute. She argued that the meaning of the word “home,” as used in Lorne’s will, included personal property.
The lawyer who had drafted Lorne’s will could not clarify what Lorne had meant by “home,” and had not asked Lorne to identify his property. Lorne’s friends stated that Lorne had intended to leave all of his property to his daughters except his interest in the business that he co-owned with James.
The lower court ruled that the personal property located in Lorne’s house and garage formed part of his “home,” and was inherited by his daughters. Personal property not located in the house or garage fell into the residue, and was inherited by James.
Principles of Will Interpretation
Noting that the ultimate purpose of will interpretation is to give effect to the testator’s subjective intention, the Court of Appeal identified four governing principles:
- A will must be given a meaning consistent with the intention of the testator;
- A court must read the entire will;
- A court must assume that the testator intended to give words in the will their ordinary meaning in the absence of a compelling reason not to do so; and
- A court may canvass extrinsic evidence that will assist it to ascertain the testator’s intention
The Meaning of “Home”
The Court of Appeal found that the word “home” is commonly understood to have multiple meanings, any of which could reflect a testator’s intention. Referring to various dictionaries, the court found that the meanings ranged from “[a] dwelling-place, house, abode… freq. used to designate a private house or residence merely as a building” at the narrow end, to “[t]he usual contents of a house; a houseful” at the broad end. Where a “home” was defined as “one’s principal place of residence,” or something similar to that, the court inferred that these definitions could include “the personal property present that makes the real property component of the definition habitable and enjoyable ‘as a principal place of residence’”.
Having found that both parties’ understandings of “home” could be supported by different common meanings of that word, the court turned its attention to what Lorne was most likely to have meant.
Other Evidence of the Testator’s Intentions
The court relied in part on a general assumption about parents to support its conclusion that Lorne had intended to use a broad meaning of “home”. The assumption was that “parents want to take care of their children,” so one should expect that a parent’s will would be generous to them. Noting that there is “no such assumption” of the same generous intention toward “a testator’s independent adult siblings,” and that there was no particular reason to find that intention on the facts of this case, the court found it more reasonable to resolve the ambiguity as to what Lorne had meant in his daughters’ favour. The court also noted that the will provided for Lorne’s daughters to inherit the entire estate if Lorne’s siblings predeceased him, which was “not an unlikely event given the age of the testator and his siblings”.
The court found extrinsic evidence unnecessary, but considered it anyway, and made three observations that supported its conclusion. One was that Lorne had made generous gifts to his daughters before his death, and had told friends that he intended to give some of his motorcycles to them. The court inferred that “it is more likely than not that the testator’s intention to provide for his daughter was consistent and did not commence after he signed his will”.
Another observation was that Lorne and James had not had a close personal relationship, which supported the view that Lorne would not have such generous and personally-motivated intentions toward James.
Finally, the court found that Lorne’s love of motorcycles had clearly contributed to his enjoyment of his “home,” which it took to support the conclusion that he would have thought of the motorcycles as part of that “home”.
Hicklin Estate serves as both a guide to some principles of will interpretation, and a note on the attention to detail that can be needed to ensure that a testator’s intentions are clear. A testator or drafting lawyer might assume that they have been clear in using certain words, when in fact those words might have multiple common meanings, and be understood differently by others. Thorough documentation of specific testamentary intentions can be useful to prevent confusion, and resulting litigation, after a testator’s death.