1. Introduction
On occasion, testators fail to dispose of all their estate in their wills. Typically this occurs through an oversight. But when a testator fails to dispose of all or part of the residue of the estate the common law default rule is that the undisposed of part will have to go out on intestacy.[1] The rule can be avoided if there is anything in the will that will prevent an intestacy. When the executor or a beneficiary makes an application for the construction of the will, the court may have opportunity to apply the ‘armchair rule’ and when it does so, it may consider extrinsic evidence, that is evidence of the circumstances in which the testator made the will. These issues arose in Gilchrist v Gilchrist,[2] a recent Saskatchewan case that involved very disturbing facts. The Court of Appeal dismissed the appeal in an oral decision that was not reported.[3]
2. Facts
John and Elsie Gilchrist had four children, Glendon, Lorraine, William, and Dawn. In the mid-1990s William was convicted of having indecently assaulted Dawn over a period of several years between 1972 and 1981, when she was a minor. At the time he denied the assaults and continues to deny them.
Dawn executed her will in 1991. It named Glendon her executor. The will was prepared by a lawyer. In the will she made specific bequests to Glendon and Lorraine and provided that the residue of her estate be paid to her parents in equal shares. William was not mentioned in the will. The father, John, died in 1995, and the mother, Elsie, died in 2016. Dawn did not change her will and so, when she died on 18 August 2022, the gift of the residue lapsed. This meant that, unless a court would be able to come to a different conclusion, the residue would have to be distributed as though Dawn had died intestate with respect to it.[4] In the circumstances, the residue would then be divided equally between Glendon, Lorraine, and William.[5]
Glendon brought an application for the court’s directions. He asked that the court apply the ‘armchair rule’ to ascertain Dawn’s intentions and on that basis order that the residue of the estate be divided equally between him and Lorraine, with no part being paid to William. He argued that it would be contrary to Dawn’s testamentary intentions for any part of her estate to go to William. He asserted that Dawn did not want any part of her estate to go to William because of the sexual assault and testified that Dawn had had no contact with William during her adult life and conducted herself as if William did not exist.
Lorraine testified that when Dawn was in the hospital in the days before she died, she and Dawn discussed changing the will to leave her estate to Glendon and Lorraine. She arranged for a lawyer to attend at the hospital for that purpose on 18 August 2022, but Dawn died early in the morning of that day. Lorraine also testified that it was clear to her that Dawn had no idea that the law might cause part of her estate to go to William because her parents were now deceased.
3. Analysis and Judgment
Justice Currie concluded that he could not give effect to these arguments and held that the gift of the residue having lapsed it would go out on intestacy. I have serious concerns about this decision but will outline Justice Currie’s reasons first and then offer the reasons for my concern.
Justice Currie was of opinion that while the armchair rule has evolved over the years, the court is restricted to interpreting the words used by the testator in the will and is not allowed to engage in a hypothetical search for the testator’s intention. In his view, that is what Glendon asked the court to do. In other words, he was not asking the court to determine what Dawn meant in writing her will but what she would have meant if she had considered what would happen if her parents predeceased her.
Further, he expressed the opinion that the court cannot apply the armchair rule if the language of the will is unambiguous.
Justice Currie did consider the presumption against intestacy. It holds that if a will is capable of two interpretations, one leading to the conclusion that it disposes of all the testator’s property and the other of failing to do so, it is presumed that the testator intended to dispose of her entire estate and did not intend to die intestate of the whole or part of the estate. However, he concluded that in order to apply the presumption he would have to apply the armchair rule, but he could not do so because its application is limited and only allows the court to interpret the language used in the will.
4. Critique
I offer this critique with the greatest respect and in the belief that the armchair rule has evolved so that it always allows extrinsic evidence to be considered.
Before the armchair rule was developed, there was a long-established tradition in the law of interpreting wills that required a court initially to construe a will without regard to any evidence other than the will itself. Having finished that exercise, the court then inquired whether there were subjects and objects in the outside world that matched the description of them in the will. If there were, that was the end of the construction. Evidence of surrounding circumstances could not be considered. It could by considered only if the language used in the will was ambiguous. This approach to construing a will is known as the strict construction, objective, nineteenth century approach. It was thought that to consider evidence of surrounding circumstances would lead to making a new will for the testator. Thus, for example, in a leading case, Higgins v Dawson,[6] the Earl of Halsbury LC said:
My Lords, I have often said that to treat language with that violence and to say that you have arrived at the conclusion from external circumstances that the testator would have made a different disposition from what he has done if he had the whole subject matter in his mind, and, therefore, to construe his language differently, is not to construe or to interpret the language which the testator himself has used, but to make a will for him which you think he ought to have made if he had had the whole circumstances present to his mind.
It is not surprising that this approach is more likely than not to defeat the testator’s intention, and indeed that is what happened in Higgins. A striking example of this result is National Society for the Prevention of Cruelty to Children v Scotland National Society for the Prevention of Cruelty to Children.[7] The testator left a substantial gift to the NSPCC. There was an organization by that name, but it was an English society whose work was restricted to that part of the United Kingdom known as England. However, the testator was domiciled and resident in Scotland, all his interests were Scottish, his money was invested there, and he left all his other property to Scottish charities. There was in fact an organization called the Scottish NSPCC and in the circumstances that was undoubtedly the society he wanted to benefit. However, because of the strict construction rule, the House of Lords held that the English society should receive the gift.
In dissent, Lord Denning once said of the strict construction approach:[8]
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.
Of course, Lord Denning also repeated the reputed remark of a Chancery judge who said that a group of dissatisfied testators are waiting on the other side of the river Styx to receive the judicial personages who misconstrued their wills, presumably to take out their ire on them.[9]
Disappointed testators should not have to wait until the afterlife to seek redress for faulty interpretations of their wills. And they do not have to if the testator’s armchair principle is properly applied.
The strict construction approach is clearly inappropriate and so, fairly early in the twentieth century, some courts began to adopt a more liberal, subjective approach to construction. With this approach the court admits evidence of surrounding circumstances immediately when it begins to interpret a will. It does not wait to do so until it finds that the words in question are ambiguous. Already in Perrin v Morgan[10] Lord Romer said:
I take it to be a cardinal rule of construction that a will should be so construed as to give effect to the intention of the testator, such intention being gathered from the language of the will read in light of the circumstances in which the will was made. In order to understand the language employed the Court is entitled, to use a familiar expression, to sit in the testator’s armchair.
And Viscount Simon LC and Lord Atkin also emphasized the fundamental rule in construing a will is to ascertain the intention of the testator.[11]
In the earlier stages of the use of the armchair rule, many courts would first interpret a will without regard to extrinsic circumstances. Only if, having done so, the language of the will was ambiguous would the court admit evidence of surrounding circumstances. Sadly, some courts continue to take this approach and this case is an example of it. However, this approach is just a variant of the old strict construction approach and still tends to defeat the testator’s intention more often than not. But the armchair rule has developed over time and now requires a court to consider evidence of surrounding circumstances from the outset, that is, from when it begins to construe the will. This new approach has become widely accepted because it tends to give effect to the testator’s intention rather than to ignore it. This new approach is clearly evident from the more recent cases I have just considered.
At least three modern appellate decisions have endorsed the new approach: Haidl v Sacher,[12] Ross v Canada Trust Co.,[13] both of which Justice Currie mentions, and Hicklin Estate v Hicklin.[14]
In Haidl, Justice Bayda, who delivered the judgment of the court, considered two approaches: A. whether the ‘ordinary meaning rule’ of construction should be applied without taking into account any surrounding circumstances at all unless the meaning is ambiguous; and, B. whether the law requires the court to admit evidence of the surrounding circumstances to be admitted at the start and to apply the ‘ordinary meaning’ rule of construction in light of the surrounding circumstances (para 7). In paras 16ff he adopted approach B and in the process rejected the old strict construction approach used in procedure A and cases such as Higgins v Dawson and the NSPCC case referred to above. In the course of his decision, Justice Bayda applied Lord Denning’s dissenting judgment in Re Rowland, referred to above, as well as Marks v Marks[15] per Idington J, and Re Burke[16] per Laidlaw JA, who followed the same approach. Consequently, in paragraph 26 of Haidl Justice Bayda took into account the relationship of the beneficiaries of one share of the residue to the testator to determine that their share should be distributed stirpitally rather than per capita. I should have thought that this case was binding on Justice Currie.
In Hicklin, the court stated in paragraph 76 that extrinsic evidence is admissible and further, ‘Its admissibility is not dependent on a finding that a word is capable of more than one meaning or that an ambiguity exists’.
Thus, it expressly rejected the old view that the court can admit extrinsic evidence only if the language is ambiguous.
Significantly, in Ross, at paragraph 40 and 41 Justice Brown states:
40 In the past, courts usually have resorted to the “armchair rule” where the testator’s intention cannot be ascertained from the plain meaning of the will’s language: Dice v. Dice Estate.[17]
41 More recently, courts are treating the “armchair rule” as an over-arching framework within which a judge applies the various tools for will construction at his or her disposal. As put by the Court of Appeal of Manitoba in Zindler,[18] at para. 14:
Feeney’s [Canadian Law of Wills] concludes that “the most recent trend in Canadian cases seems to indicate that evidence of surrounding circumstances should be taken into account in all cases before a court reaches any final determination of the meaning of words” (at para. 10.54). This is true even if the words, themselves, do not appear to be ambiguous or unclear . . .
There has in fact been what can only be described as a seismic shift in the approach to the interpretation of documents generally in the last couple of decades. Modern case law has endorsed the principle that documents, including commercial documents, trusts, and wills, must be interpreted in light of surrounding circumstances.
Thus, in Investors Compensation Scheme v West Bromwich Building Society[19] Lord Hoffmann described the modern principles for interpreting commercial documents. Similarly, in Creston Moly Corp v Sattva Capital Corp[20] Rothstein J stated:
Contractual interpretation involves issues of mixed fact and law and it is an exercise in which the principles of contractual interpretation are applied to the words of the written contract, considered in light of the factual matrix.
Earlier, in Inland Revenue Commissioners v McMullen[21] Lord Hailsham of St Marylebone stated in dictum that in case of ambiguity a charitable trust should be given a benignant construction.
Also in RP Johnson Family Trust (Trustees of) v Johnson[22] Steeves J stated:
15 The weight of the authorities demonstrates that 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….
In Zindler v Salvation Army[23] Justice Beard said:
10 Given that both contracts and wills are now to be interpreted in the context of their factual matrix, I am of the opinion that the analysis of the application of the Housen[24] principles to the interpretation of contracts, as set out in King,[25] and Sattva,[26] applies equally to the interpretation of a will. To the extent that the interpretation of a will is to be done in the context of the surrounding circumstances, that involves a question of mixed fact and law, as explained in Housen, unless there is an extricable point of law, which is then subject to a correctness standard.[27]
And finally, in Millar v Millar[28] HHJ Matthews (sitting as a judge of the High Court said:
… there can be no doubt that the principles of interpretation for commercial documents … also apply to trusts and wills.
However, Justice Currie refers to and relies instead on older, outdated law.
One such reference is the statement in para 12 of the Chambers reasons, made with reference to Ellingson v Ellingson[29] that ‘[w]here a will is unambiguous the court interprets the will without reference to any other information. The absence of ambiguity means that there is no need to go beyond the testator’s written word’ to ascertain her intention. Another is a similar statement at para 15 from Resnick v McGuire.[30] And a third is a series of quotations in para 22 which limit the court to the words used by the testator. With respect, such statements repeat the approach used in the old strict construction cases and serve to defeat the testator’s intention, just as it did in NSPCC and other cases.
If the modern approach to the use of armchair rule is correct, that is that the court when interpreting a will must always consider evidence of surrounding circumstances from the outset, and I believe it is since it has been endorsed by appellate courts and many others, then the court should not be restricted to the words used by the testator but should consider evidence of surrounding circumstances at the time the will was made from the outset.
In this case those surrounding circumstances include the evidence about William’s sexual assault of Dawn, her exclusion of William from her relationships, and her exclusion of him from her will. Had those factors been considered, I believe that the court would have come to a different conclusion in this case. Its failure to do so turned on Justice Currie’s belief that the armchair rule has not evolved to empower the court to consider such evidence when there is no ambiguity in the language of the will, even though modern appellate judgments hold otherwise.
This also meant that he felt unable to apply the armchair rule to the presumption against intestacy. That presumption, which I have summarized above, is especially strong if the testator purported to dispose of all her property.[31] Thus, as Ritchie J said in Kilby v Myers:[32]
It appears to me, however, that when an individual has purported to make final disposition of all his “property both real and personal of every nature and kind and wheresoever situate”, he is not to be taken to have intended to leave all that property undisposed of on the happening of certain events unless that are some very exceptional and compelling reasons for so holding.
Because Justice Currie felt that he could not apply the armchair rule, he declined to follow Frohlich Estate v Wedekind.[33] It was a case in which the testator gave all his estate to his executors to pay discrete portions of the residue to named persons, all of whom were related to the testator through marriage. One of them predeceased the testator, so that the gift to him lapsed. Justice Gensolus applied the armchair rule and took into account the makeup of the testator’s family and her relationship to them. In doing so the court found a contrary intention in the will based on that surrounding evidence and directed that the lapsed gift be distributed among the surviving residuary beneficiaries, rather than letting it go out on intestacy to next of kin with whom the testator had little or no contact.
Mladen Estate v McGuire[34] is a very similar case. The testator left the residue of her estate to her mother and if she predeceased her, the residue was to be divided among her aunt and two first cousins. The mother and the aunt did predecease the testator, so their gift lapsed. The testator was close to the four persons named in her will, but not to three other first cousins who would share in the lapsed residuary gift if it went out on intestacy and who were virtual strangers to her. The court noted that the will showed that the testator intended to dispose of her entire estate, and thought that her mother and aunt, two of her residuary beneficiaries would survive her (which is presumably why she named them residuary beneficiaries). Justice Belobaba considered the close relationship between the four persons mentioned. He found that he could not determine from the will alone that the testator intended the two first cousins to whom she was close should take the lapsed share of the residue. However, he concluded that he could do so if he sat in the testator’s armchair. When doing so he found a contrary intention in the will, based on the surrounding circumstances, which allowed him to direct that the two first cousins to whom the testator felt close should share the lapsed gift and that it should not go out on intestacy.
In neither of these two cases was there an ambiguity in the language of the will. Thus, they evidence that the armchair rule has evolved to permit the court in all cases to consider evidence of surrounding circumstances.
It is clear that Dawn purported to dispose of all her property. Her will, the relevant portions of which are reproduced in paragraph 11 of the Chambers decision, say exactly that. Therefore, in light of Frohlich and Mladen, as well as the leading modern cases discussed above, which stipulate that the court must interpret a will in light of surrounding circumstances, in my respectful opinion Justice Currie should have considered the surrounding circumstances in this case. If he had done so, he would have reached a different conclusion. The exercise would not be a hypothetical exercise but would give effect to Dawn’s intention. Justice Currie’s concern that he would not have sufficient evidence to determine who Dawn might have chosen as substitute residuary beneficiaries was unfounded, I believe, because the provisions of the will made clear that she wanted to leave her estate only to her parents and Glendon and Lorraine. Thus it would not be untoward to give the lapsed residuary gift to the latter two siblings.
By the same token, and with great respect, I find it regrettable that the Court of Appeal agreed with Justice Currie’s decision and dismissed the appeal.
Appendix
Appeal Hearing
Result: Oral Decision without Reasons
Result Date: 2024-02-08
Disposition:
As Justice Caldwell explained, this Court reads all the written material in advance of the hearing and considers the issues in depth. We have now also had the benefit of your able oral submissions. After having considered all of that, the members of the panel are in agreement that the appeal should be dismissed.
The facts of this matter are very disturbing. There is no doubt that William sexually abused Dawn in horrific ways over a long period of time. However, intestacy law is clear. In our view, the Chambers judge did not commit an error regarding the armchair rule. He identified the correct legal principles and properly applied them. While the appellant has submitted that the armchair rule has evolved and that a broader view of that concept should be taken, we do not agree that the principle has been or could be stretched so far as to reach the result advocated for by the Executor. As found by the Chambers judge, there was no ambiguity in the will that could trigger the application of the armchair rule—even as it has evolved. As stated by the Chambers judge, the executor was not asking the Court to ascertain what Dawn’s will meant, but what she would have meant to put in her will had she turned her mind to her parents predeceasing her. On its wording, there was no basis upon which the Chambers judge could have interpreted Dawn’s will to include only Glendon and Lorraine as alternate residual beneficiaries. We substantially agree with the entirety of the Chambers judge’s analysis on the inapplicability of the armchair rule to this case and on the issues surrounding intestacy. As such, the grounds of appeal related to the interpretation of the will and Dawn’s intentions cannot be given effect.
Additionally, we find no error in the award of solicitor client costs to both parties to be paid out of the estate. Awards of costs are discretionary and, applying the applicable standard of review, we can find nothing that would justify appellate interference in the award of costs.
—
[1] See, e.g., Re Stuart, 1964 CarswellBC 60 (SC).
[2] 2023 SKKB 187.
[3] I am indebted to counsel for the appellant who provided me with a copy of the Endorsement. I attach it to his blog as an Appendix.
[4] Intestate Succession Act, 2019, SS 2019, c I-13.2, s 13.
[5]Ibid., s 8(2).
[6] [1902] AC 1 at 6 (HL).
[7] [1915] AC 207 (HL).
[8] Re Rowland, [1963] 1 Ch 1 at 9-10.
[9] Re Rowland, loc. cit. In Perrin v Morgan, [1943] AC 399 (HL) at 415 Lord Atkin makes the same comment.
[10] Ibid., p 420, emphasis supplied.
[11] Ibid., pp 406 and 414-15, respectively.
[12] 1979 CarswellSask 131, 106 DLR 3d 360 (CA).
[13] 2021 ONCA 161.
[14] 2019 ABCA 136.
[15] (1908), 40 SCR 210.
[16] (1959), 20 DLR 2d 396, per Laidlaw JA.
[17] 2012 ONCA 468, 111 O.R. (3d) 407, at para. 37.
[18] Zindler v Salvation Army, 2015 MBCA 33.
[19] [1998] 1 SLR 896 (HL) at 912-13.
[20] 2014 SCC 53, para 50.
[21] [1981] AC 1 at 14 (HL).
[22] 2014 BCSC 1889 at para 15
[23] Footnote 18, supra, para 10.
[24] Housen v Nikolaison 2002 SCC 33, para 37 [2002] 2 SCR 263.
[25] King v Operating Engineers Training Institute of Manitoba Inc, 2011 MBCA 80, paras. 19-29.
[26] Ibid., paras 42-55.
[27] Ibid., para 21.
[28] [2018] EWHC 1926 (Ch), para 17.
[29] 2017 SKQB 261.
[30] (2007), 39 ETR 3d 289 (Ont SCJ)
[31] Re MacDonnell (1982), 11 ETR 52 at 57-58 (Ont CA), per Lacourcière JA. See also Malo v Markowsky, 2014 SKQB 26, para 18, to the same effect.
[32] Kilby v Myers, [1965] SCR 24 at 28-29, per Ritchie J, sub nom re Harmer, 46 DLR 2d 521.
[33] 2012 ONSC 3775
[34] 2007 CarswellOnt 1976.
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Written by: Albert Oosterhoff
Posted on: March 18, 2024
Categories: Commentary, WEL Newsletter
1. Introduction
On occasion, testators fail to dispose of all their estate in their wills. Typically this occurs through an oversight. But when a testator fails to dispose of all or part of the residue of the estate the common law default rule is that the undisposed of part will have to go out on intestacy.[1] The rule can be avoided if there is anything in the will that will prevent an intestacy. When the executor or a beneficiary makes an application for the construction of the will, the court may have opportunity to apply the ‘armchair rule’ and when it does so, it may consider extrinsic evidence, that is evidence of the circumstances in which the testator made the will. These issues arose in Gilchrist v Gilchrist,[2] a recent Saskatchewan case that involved very disturbing facts. The Court of Appeal dismissed the appeal in an oral decision that was not reported.[3]
2. Facts
John and Elsie Gilchrist had four children, Glendon, Lorraine, William, and Dawn. In the mid-1990s William was convicted of having indecently assaulted Dawn over a period of several years between 1972 and 1981, when she was a minor. At the time he denied the assaults and continues to deny them.
Dawn executed her will in 1991. It named Glendon her executor. The will was prepared by a lawyer. In the will she made specific bequests to Glendon and Lorraine and provided that the residue of her estate be paid to her parents in equal shares. William was not mentioned in the will. The father, John, died in 1995, and the mother, Elsie, died in 2016. Dawn did not change her will and so, when she died on 18 August 2022, the gift of the residue lapsed. This meant that, unless a court would be able to come to a different conclusion, the residue would have to be distributed as though Dawn had died intestate with respect to it.[4] In the circumstances, the residue would then be divided equally between Glendon, Lorraine, and William.[5]
Glendon brought an application for the court’s directions. He asked that the court apply the ‘armchair rule’ to ascertain Dawn’s intentions and on that basis order that the residue of the estate be divided equally between him and Lorraine, with no part being paid to William. He argued that it would be contrary to Dawn’s testamentary intentions for any part of her estate to go to William. He asserted that Dawn did not want any part of her estate to go to William because of the sexual assault and testified that Dawn had had no contact with William during her adult life and conducted herself as if William did not exist.
Lorraine testified that when Dawn was in the hospital in the days before she died, she and Dawn discussed changing the will to leave her estate to Glendon and Lorraine. She arranged for a lawyer to attend at the hospital for that purpose on 18 August 2022, but Dawn died early in the morning of that day. Lorraine also testified that it was clear to her that Dawn had no idea that the law might cause part of her estate to go to William because her parents were now deceased.
3. Analysis and Judgment
Justice Currie concluded that he could not give effect to these arguments and held that the gift of the residue having lapsed it would go out on intestacy. I have serious concerns about this decision but will outline Justice Currie’s reasons first and then offer the reasons for my concern.
Justice Currie was of opinion that while the armchair rule has evolved over the years, the court is restricted to interpreting the words used by the testator in the will and is not allowed to engage in a hypothetical search for the testator’s intention. In his view, that is what Glendon asked the court to do. In other words, he was not asking the court to determine what Dawn meant in writing her will but what she would have meant if she had considered what would happen if her parents predeceased her.
Further, he expressed the opinion that the court cannot apply the armchair rule if the language of the will is unambiguous.
Justice Currie did consider the presumption against intestacy. It holds that if a will is capable of two interpretations, one leading to the conclusion that it disposes of all the testator’s property and the other of failing to do so, it is presumed that the testator intended to dispose of her entire estate and did not intend to die intestate of the whole or part of the estate. However, he concluded that in order to apply the presumption he would have to apply the armchair rule, but he could not do so because its application is limited and only allows the court to interpret the language used in the will.
4. Critique
I offer this critique with the greatest respect and in the belief that the armchair rule has evolved so that it always allows extrinsic evidence to be considered.
Before the armchair rule was developed, there was a long-established tradition in the law of interpreting wills that required a court initially to construe a will without regard to any evidence other than the will itself. Having finished that exercise, the court then inquired whether there were subjects and objects in the outside world that matched the description of them in the will. If there were, that was the end of the construction. Evidence of surrounding circumstances could not be considered. It could by considered only if the language used in the will was ambiguous. This approach to construing a will is known as the strict construction, objective, nineteenth century approach. It was thought that to consider evidence of surrounding circumstances would lead to making a new will for the testator. Thus, for example, in a leading case, Higgins v Dawson,[6] the Earl of Halsbury LC said:
My Lords, I have often said that to treat language with that violence and to say that you have arrived at the conclusion from external circumstances that the testator would have made a different disposition from what he has done if he had the whole subject matter in his mind, and, therefore, to construe his language differently, is not to construe or to interpret the language which the testator himself has used, but to make a will for him which you think he ought to have made if he had had the whole circumstances present to his mind.
It is not surprising that this approach is more likely than not to defeat the testator’s intention, and indeed that is what happened in Higgins. A striking example of this result is National Society for the Prevention of Cruelty to Children v Scotland National Society for the Prevention of Cruelty to Children.[7] The testator left a substantial gift to the NSPCC. There was an organization by that name, but it was an English society whose work was restricted to that part of the United Kingdom known as England. However, the testator was domiciled and resident in Scotland, all his interests were Scottish, his money was invested there, and he left all his other property to Scottish charities. There was in fact an organization called the Scottish NSPCC and in the circumstances that was undoubtedly the society he wanted to benefit. However, because of the strict construction rule, the House of Lords held that the English society should receive the gift.
In dissent, Lord Denning once said of the strict construction approach:[8]
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.
Of course, Lord Denning also repeated the reputed remark of a Chancery judge who said that a group of dissatisfied testators are waiting on the other side of the river Styx to receive the judicial personages who misconstrued their wills, presumably to take out their ire on them.[9]
Disappointed testators should not have to wait until the afterlife to seek redress for faulty interpretations of their wills. And they do not have to if the testator’s armchair principle is properly applied.
The strict construction approach is clearly inappropriate and so, fairly early in the twentieth century, some courts began to adopt a more liberal, subjective approach to construction. With this approach the court admits evidence of surrounding circumstances immediately when it begins to interpret a will. It does not wait to do so until it finds that the words in question are ambiguous. Already in Perrin v Morgan[10] Lord Romer said:
I take it to be a cardinal rule of construction that a will should be so construed as to give effect to the intention of the testator, such intention being gathered from the language of the will read in light of the circumstances in which the will was made. In order to understand the language employed the Court is entitled, to use a familiar expression, to sit in the testator’s armchair.
And Viscount Simon LC and Lord Atkin also emphasized the fundamental rule in construing a will is to ascertain the intention of the testator.[11]
In the earlier stages of the use of the armchair rule, many courts would first interpret a will without regard to extrinsic circumstances. Only if, having done so, the language of the will was ambiguous would the court admit evidence of surrounding circumstances. Sadly, some courts continue to take this approach and this case is an example of it. However, this approach is just a variant of the old strict construction approach and still tends to defeat the testator’s intention more often than not. But the armchair rule has developed over time and now requires a court to consider evidence of surrounding circumstances from the outset, that is, from when it begins to construe the will. This new approach has become widely accepted because it tends to give effect to the testator’s intention rather than to ignore it. This new approach is clearly evident from the more recent cases I have just considered.
At least three modern appellate decisions have endorsed the new approach: Haidl v Sacher,[12] Ross v Canada Trust Co.,[13] both of which Justice Currie mentions, and Hicklin Estate v Hicklin.[14]
In Haidl, Justice Bayda, who delivered the judgment of the court, considered two approaches: A. whether the ‘ordinary meaning rule’ of construction should be applied without taking into account any surrounding circumstances at all unless the meaning is ambiguous; and, B. whether the law requires the court to admit evidence of the surrounding circumstances to be admitted at the start and to apply the ‘ordinary meaning’ rule of construction in light of the surrounding circumstances (para 7). In paras 16ff he adopted approach B and in the process rejected the old strict construction approach used in procedure A and cases such as Higgins v Dawson and the NSPCC case referred to above. In the course of his decision, Justice Bayda applied Lord Denning’s dissenting judgment in Re Rowland, referred to above, as well as Marks v Marks[15] per Idington J, and Re Burke[16] per Laidlaw JA, who followed the same approach. Consequently, in paragraph 26 of Haidl Justice Bayda took into account the relationship of the beneficiaries of one share of the residue to the testator to determine that their share should be distributed stirpitally rather than per capita. I should have thought that this case was binding on Justice Currie.
In Hicklin, the court stated in paragraph 76 that extrinsic evidence is admissible and further, ‘Its admissibility is not dependent on a finding that a word is capable of more than one meaning or that an ambiguity exists’.
Thus, it expressly rejected the old view that the court can admit extrinsic evidence only if the language is ambiguous.
Significantly, in Ross, at paragraph 40 and 41 Justice Brown states:
40 In the past, courts usually have resorted to the “armchair rule” where the testator’s intention cannot be ascertained from the plain meaning of the will’s language: Dice v. Dice Estate.[17]
41 More recently, courts are treating the “armchair rule” as an over-arching framework within which a judge applies the various tools for will construction at his or her disposal. As put by the Court of Appeal of Manitoba in Zindler,[18] at para. 14:
Feeney’s [Canadian Law of Wills] concludes that “the most recent trend in Canadian cases seems to indicate that evidence of surrounding circumstances should be taken into account in all cases before a court reaches any final determination of the meaning of words” (at para. 10.54). This is true even if the words, themselves, do not appear to be ambiguous or unclear . . .
There has in fact been what can only be described as a seismic shift in the approach to the interpretation of documents generally in the last couple of decades. Modern case law has endorsed the principle that documents, including commercial documents, trusts, and wills, must be interpreted in light of surrounding circumstances.
Thus, in Investors Compensation Scheme v West Bromwich Building Society[19] Lord Hoffmann described the modern principles for interpreting commercial documents. Similarly, in Creston Moly Corp v Sattva Capital Corp[20] Rothstein J stated:
Contractual interpretation involves issues of mixed fact and law and it is an exercise in which the principles of contractual interpretation are applied to the words of the written contract, considered in light of the factual matrix.
Earlier, in Inland Revenue Commissioners v McMullen[21] Lord Hailsham of St Marylebone stated in dictum that in case of ambiguity a charitable trust should be given a benignant construction.
Also in RP Johnson Family Trust (Trustees of) v Johnson[22] Steeves J stated:
15 The weight of the authorities demonstrates that 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….
In Zindler v Salvation Army[23] Justice Beard said:
10 Given that both contracts and wills are now to be interpreted in the context of their factual matrix, I am of the opinion that the analysis of the application of the Housen[24] principles to the interpretation of contracts, as set out in King,[25] and Sattva,[26] applies equally to the interpretation of a will. To the extent that the interpretation of a will is to be done in the context of the surrounding circumstances, that involves a question of mixed fact and law, as explained in Housen, unless there is an extricable point of law, which is then subject to a correctness standard.[27]
And finally, in Millar v Millar[28] HHJ Matthews (sitting as a judge of the High Court said:
… there can be no doubt that the principles of interpretation for commercial documents … also apply to trusts and wills.
However, Justice Currie refers to and relies instead on older, outdated law.
One such reference is the statement in para 12 of the Chambers reasons, made with reference to Ellingson v Ellingson[29] that ‘[w]here a will is unambiguous the court interprets the will without reference to any other information. The absence of ambiguity means that there is no need to go beyond the testator’s written word’ to ascertain her intention. Another is a similar statement at para 15 from Resnick v McGuire.[30] And a third is a series of quotations in para 22 which limit the court to the words used by the testator. With respect, such statements repeat the approach used in the old strict construction cases and serve to defeat the testator’s intention, just as it did in NSPCC and other cases.
If the modern approach to the use of armchair rule is correct, that is that the court when interpreting a will must always consider evidence of surrounding circumstances from the outset, and I believe it is since it has been endorsed by appellate courts and many others, then the court should not be restricted to the words used by the testator but should consider evidence of surrounding circumstances at the time the will was made from the outset.
In this case those surrounding circumstances include the evidence about William’s sexual assault of Dawn, her exclusion of William from her relationships, and her exclusion of him from her will. Had those factors been considered, I believe that the court would have come to a different conclusion in this case. Its failure to do so turned on Justice Currie’s belief that the armchair rule has not evolved to empower the court to consider such evidence when there is no ambiguity in the language of the will, even though modern appellate judgments hold otherwise.
This also meant that he felt unable to apply the armchair rule to the presumption against intestacy. That presumption, which I have summarized above, is especially strong if the testator purported to dispose of all her property.[31] Thus, as Ritchie J said in Kilby v Myers:[32]
It appears to me, however, that when an individual has purported to make final disposition of all his “property both real and personal of every nature and kind and wheresoever situate”, he is not to be taken to have intended to leave all that property undisposed of on the happening of certain events unless that are some very exceptional and compelling reasons for so holding.
Because Justice Currie felt that he could not apply the armchair rule, he declined to follow Frohlich Estate v Wedekind.[33] It was a case in which the testator gave all his estate to his executors to pay discrete portions of the residue to named persons, all of whom were related to the testator through marriage. One of them predeceased the testator, so that the gift to him lapsed. Justice Gensolus applied the armchair rule and took into account the makeup of the testator’s family and her relationship to them. In doing so the court found a contrary intention in the will based on that surrounding evidence and directed that the lapsed gift be distributed among the surviving residuary beneficiaries, rather than letting it go out on intestacy to next of kin with whom the testator had little or no contact.
Mladen Estate v McGuire[34] is a very similar case. The testator left the residue of her estate to her mother and if she predeceased her, the residue was to be divided among her aunt and two first cousins. The mother and the aunt did predecease the testator, so their gift lapsed. The testator was close to the four persons named in her will, but not to three other first cousins who would share in the lapsed residuary gift if it went out on intestacy and who were virtual strangers to her. The court noted that the will showed that the testator intended to dispose of her entire estate, and thought that her mother and aunt, two of her residuary beneficiaries would survive her (which is presumably why she named them residuary beneficiaries). Justice Belobaba considered the close relationship between the four persons mentioned. He found that he could not determine from the will alone that the testator intended the two first cousins to whom she was close should take the lapsed share of the residue. However, he concluded that he could do so if he sat in the testator’s armchair. When doing so he found a contrary intention in the will, based on the surrounding circumstances, which allowed him to direct that the two first cousins to whom the testator felt close should share the lapsed gift and that it should not go out on intestacy.
In neither of these two cases was there an ambiguity in the language of the will. Thus, they evidence that the armchair rule has evolved to permit the court in all cases to consider evidence of surrounding circumstances.
It is clear that Dawn purported to dispose of all her property. Her will, the relevant portions of which are reproduced in paragraph 11 of the Chambers decision, say exactly that. Therefore, in light of Frohlich and Mladen, as well as the leading modern cases discussed above, which stipulate that the court must interpret a will in light of surrounding circumstances, in my respectful opinion Justice Currie should have considered the surrounding circumstances in this case. If he had done so, he would have reached a different conclusion. The exercise would not be a hypothetical exercise but would give effect to Dawn’s intention. Justice Currie’s concern that he would not have sufficient evidence to determine who Dawn might have chosen as substitute residuary beneficiaries was unfounded, I believe, because the provisions of the will made clear that she wanted to leave her estate only to her parents and Glendon and Lorraine. Thus it would not be untoward to give the lapsed residuary gift to the latter two siblings.
By the same token, and with great respect, I find it regrettable that the Court of Appeal agreed with Justice Currie’s decision and dismissed the appeal.
Appendix
Appeal Hearing
Result: Oral Decision without Reasons
Result Date: 2024-02-08
Disposition:
As Justice Caldwell explained, this Court reads all the written material in advance of the hearing and considers the issues in depth. We have now also had the benefit of your able oral submissions. After having considered all of that, the members of the panel are in agreement that the appeal should be dismissed.
The facts of this matter are very disturbing. There is no doubt that William sexually abused Dawn in horrific ways over a long period of time. However, intestacy law is clear. In our view, the Chambers judge did not commit an error regarding the armchair rule. He identified the correct legal principles and properly applied them. While the appellant has submitted that the armchair rule has evolved and that a broader view of that concept should be taken, we do not agree that the principle has been or could be stretched so far as to reach the result advocated for by the Executor. As found by the Chambers judge, there was no ambiguity in the will that could trigger the application of the armchair rule—even as it has evolved. As stated by the Chambers judge, the executor was not asking the Court to ascertain what Dawn’s will meant, but what she would have meant to put in her will had she turned her mind to her parents predeceasing her. On its wording, there was no basis upon which the Chambers judge could have interpreted Dawn’s will to include only Glendon and Lorraine as alternate residual beneficiaries. We substantially agree with the entirety of the Chambers judge’s analysis on the inapplicability of the armchair rule to this case and on the issues surrounding intestacy. As such, the grounds of appeal related to the interpretation of the will and Dawn’s intentions cannot be given effect.
Additionally, we find no error in the award of solicitor client costs to both parties to be paid out of the estate. Awards of costs are discretionary and, applying the applicable standard of review, we can find nothing that would justify appellate interference in the award of costs.
—
[1] See, e.g., Re Stuart, 1964 CarswellBC 60 (SC).
[2] 2023 SKKB 187.
[3] I am indebted to counsel for the appellant who provided me with a copy of the Endorsement. I attach it to his blog as an Appendix.
[4] Intestate Succession Act, 2019, SS 2019, c I-13.2, s 13.
[5]Ibid., s 8(2).
[6] [1902] AC 1 at 6 (HL).
[7] [1915] AC 207 (HL).
[8] Re Rowland, [1963] 1 Ch 1 at 9-10.
[9] Re Rowland, loc. cit. In Perrin v Morgan, [1943] AC 399 (HL) at 415 Lord Atkin makes the same comment.
[10] Ibid., p 420, emphasis supplied.
[11] Ibid., pp 406 and 414-15, respectively.
[12] 1979 CarswellSask 131, 106 DLR 3d 360 (CA).
[13] 2021 ONCA 161.
[14] 2019 ABCA 136.
[15] (1908), 40 SCR 210.
[16] (1959), 20 DLR 2d 396, per Laidlaw JA.
[17] 2012 ONCA 468, 111 O.R. (3d) 407, at para. 37.
[18] Zindler v Salvation Army, 2015 MBCA 33.
[19] [1998] 1 SLR 896 (HL) at 912-13.
[20] 2014 SCC 53, para 50.
[21] [1981] AC 1 at 14 (HL).
[22] 2014 BCSC 1889 at para 15
[23] Footnote 18, supra, para 10.
[24] Housen v Nikolaison 2002 SCC 33, para 37 [2002] 2 SCR 263.
[25] King v Operating Engineers Training Institute of Manitoba Inc, 2011 MBCA 80, paras. 19-29.
[26] Ibid., paras 42-55.
[27] Ibid., para 21.
[28] [2018] EWHC 1926 (Ch), para 17.
[29] 2017 SKQB 261.
[30] (2007), 39 ETR 3d 289 (Ont SCJ)
[31] Re MacDonnell (1982), 11 ETR 52 at 57-58 (Ont CA), per Lacourcière JA. See also Malo v Markowsky, 2014 SKQB 26, para 18, to the same effect.
[32] Kilby v Myers, [1965] SCR 24 at 28-29, per Ritchie J, sub nom re Harmer, 46 DLR 2d 521.
[33] 2012 ONSC 3775
[34] 2007 CarswellOnt 1976.
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