Will Interpretation Using Armchair Principle
1. Introduction
After so many cases at the appellate level which have held that the armchair principle should be applied as a matter of course when interpreting wills, it beggars belief that some judges continue to ignore that principle and that some lawyers continue to argue that the principle should not be applied. That argument was made again by the parties in Haddock v Haddock.[1] Thankfully the court rejected the argument in this case.
2. Facts
The Testator, Audrey Lillian Haddock died in May 2022. She was predeceased by her husband and by one child, who died without issue. She was survived by three children, William, Susan, and Thomas, and named the three as joint executors in her Will made in 2012. The Will made a gift of one investment account for the benefit of the Testator’s grandchildren equally. It contained the following provision regarding the Testator’s cottage property:
If I still own the cottage located at 96 Gilmour Point, Apsley, Ontario K0L 1A0 at the date of my death, title to the property shall be transferred to my son, THOMAS STEPHEN HADDOCK; provided that the value of said cottage property as determined by a qualified appraiser and the cost of said appraisal shall be deducted from my said son’s share of my Estate.
The Will left the residue equally between the three surviving children.
Two qualified appraisers valued the cottage at $1,375,000. However, the residuary estate apart from the cottage was only $796,688.64. This would give each child a share of $265,562.88, less additional taxes and estate administration costs.
The children disagree about the effect of the Will in light of the fact that the appraised value of the cottage is greater than Thomas’s share of the residue. Thomas argues that he is entitled to the cottage, provided that the appraised value of the cottage is deducted from his share only up to the value of his share of the residue. But William and Susan argue that the Will requires Thomas to pay the full appraised value of the cottage from his share of the estate plus any shortfall that exceeds his interest. They brought this application for the court’s opinion, advice and directions.
The parties submitted that the court can only apply the armchair rule if the language of the clause fails adequately to make the Testator’s intention clear!
3. Analysis and Judgment
Justice Akbarali began her analysis with a discussion of the modern legal principles that govern the interpretation of a will. For this purpose, she referred specifically to the leading case in Ontario, Ross v Canada Trust Company,[2] as well as to Trezzi v Trezzi[3] and Dice v Dice Estate.[4] These cases all hold that when interpreting a will, the court must determine the testator’s actual or subjective intention about the distribution of her property. For that purpose, the court is not just entitled to sit in the testator’s armchair but must do so from the outset of its deliberations. In other words, the court should not first determine whether the language of the Will is clear and unambiguous, and if it is, end its deliberation. It must consider that language in the context of the circumstances of the testator when she made the will. On this point see also Zindler v Salvation Army,[5] and Hicklin Estate v Hicklin.[6] The only extrinsic evidence the court may not normally consider is direct extrinsic evidence of the testator’s intention.[7]
Her Honour then considered the evidence of surrounding circumstances. She held that certain letters from family members and neighbours about the Testator’s intentions were inadmissible because they were direct extrinsic evidence and hearsay.
Justice Akbarali found that the Testator would have been aware that William and his wife had purchased their own cottage, and that Susan lived in Alberta and had limited opportunity to use the cottage. She would also have known that Thomas used the cottage regularly and liked it. She also found that the Testator wanted the cottage to be kept in the family and that it made the most sense for Thomas to receive it. Moreover, when she made the Will, it was likely that Testator expected that Thomas’s one-third share would be adequate to cover the value of the cottage, and that, in the result, each child would benefit equally under her Will.
Justice Akbarali found that the language of the Will supported the extrinsic evidence that the Testator intended to treat her children equally. While the Testator did not consider the possibility that the value of the cottage would increase significantly, that does not alter her intention to benefit her children equally. Thus, she found that the Testator did not intend that William and Susan’s shares should be reduced by the shortfall between the value of Thomas’s share and the value of the cottage. In consequence, she held that Thomas is entitled to the cottage if its value is returned to the estate. Thus, if Thomas wants the cottage, he must pay the outstanding balance. If he does not, the gift to him fails and then the cottage must be sold, and the purchase price will fall into residue.
On the issue of costs, her Honour found that the application was the consequence of the failure of the Testator to address the possibility that Thomas’s share might be insufficient to cover the value of the cottage. Therefore, it was appropriate that the estate pay the substantial indemnity costs of the Applicants. Since Thomas was unsuccessful, she ordered that he pay his own costs.
—
[1] 2025 ONSC 6287.
[2] 2021 ONCA 161.
[3] 2019 ONCA 978.
[4] 2012 ONCA 468.
[5] 2015 MBCA 33, para 14.
[6] 2019 ABCA 136, paras 76, 89, 93, 94.
[7] Citing Kurt v Kurt and Sullivan, 2023 ONSC 6599, paras 30, 32.
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Written by: Albert Oosterhoff
Posted on: January 30, 2026
Categories: Commentary, WEL Newsletter
1. Introduction
After so many cases at the appellate level which have held that the armchair principle should be applied as a matter of course when interpreting wills, it beggars belief that some judges continue to ignore that principle and that some lawyers continue to argue that the principle should not be applied. That argument was made again by the parties in Haddock v Haddock.[1] Thankfully the court rejected the argument in this case.
2. Facts
The Testator, Audrey Lillian Haddock died in May 2022. She was predeceased by her husband and by one child, who died without issue. She was survived by three children, William, Susan, and Thomas, and named the three as joint executors in her Will made in 2012. The Will made a gift of one investment account for the benefit of the Testator’s grandchildren equally. It contained the following provision regarding the Testator’s cottage property:
If I still own the cottage located at 96 Gilmour Point, Apsley, Ontario K0L 1A0 at the date of my death, title to the property shall be transferred to my son, THOMAS STEPHEN HADDOCK; provided that the value of said cottage property as determined by a qualified appraiser and the cost of said appraisal shall be deducted from my said son’s share of my Estate.
The Will left the residue equally between the three surviving children.
Two qualified appraisers valued the cottage at $1,375,000. However, the residuary estate apart from the cottage was only $796,688.64. This would give each child a share of $265,562.88, less additional taxes and estate administration costs.
The children disagree about the effect of the Will in light of the fact that the appraised value of the cottage is greater than Thomas’s share of the residue. Thomas argues that he is entitled to the cottage, provided that the appraised value of the cottage is deducted from his share only up to the value of his share of the residue. But William and Susan argue that the Will requires Thomas to pay the full appraised value of the cottage from his share of the estate plus any shortfall that exceeds his interest. They brought this application for the court’s opinion, advice and directions.
The parties submitted that the court can only apply the armchair rule if the language of the clause fails adequately to make the Testator’s intention clear!
3. Analysis and Judgment
Justice Akbarali began her analysis with a discussion of the modern legal principles that govern the interpretation of a will. For this purpose, she referred specifically to the leading case in Ontario, Ross v Canada Trust Company,[2] as well as to Trezzi v Trezzi[3] and Dice v Dice Estate.[4] These cases all hold that when interpreting a will, the court must determine the testator’s actual or subjective intention about the distribution of her property. For that purpose, the court is not just entitled to sit in the testator’s armchair but must do so from the outset of its deliberations. In other words, the court should not first determine whether the language of the Will is clear and unambiguous, and if it is, end its deliberation. It must consider that language in the context of the circumstances of the testator when she made the will. On this point see also Zindler v Salvation Army,[5] and Hicklin Estate v Hicklin.[6] The only extrinsic evidence the court may not normally consider is direct extrinsic evidence of the testator’s intention.[7]
Her Honour then considered the evidence of surrounding circumstances. She held that certain letters from family members and neighbours about the Testator’s intentions were inadmissible because they were direct extrinsic evidence and hearsay.
Justice Akbarali found that the Testator would have been aware that William and his wife had purchased their own cottage, and that Susan lived in Alberta and had limited opportunity to use the cottage. She would also have known that Thomas used the cottage regularly and liked it. She also found that the Testator wanted the cottage to be kept in the family and that it made the most sense for Thomas to receive it. Moreover, when she made the Will, it was likely that Testator expected that Thomas’s one-third share would be adequate to cover the value of the cottage, and that, in the result, each child would benefit equally under her Will.
Justice Akbarali found that the language of the Will supported the extrinsic evidence that the Testator intended to treat her children equally. While the Testator did not consider the possibility that the value of the cottage would increase significantly, that does not alter her intention to benefit her children equally. Thus, she found that the Testator did not intend that William and Susan’s shares should be reduced by the shortfall between the value of Thomas’s share and the value of the cottage. In consequence, she held that Thomas is entitled to the cottage if its value is returned to the estate. Thus, if Thomas wants the cottage, he must pay the outstanding balance. If he does not, the gift to him fails and then the cottage must be sold, and the purchase price will fall into residue.
On the issue of costs, her Honour found that the application was the consequence of the failure of the Testator to address the possibility that Thomas’s share might be insufficient to cover the value of the cottage. Therefore, it was appropriate that the estate pay the substantial indemnity costs of the Applicants. Since Thomas was unsuccessful, she ordered that he pay his own costs.
—
[1] 2025 ONSC 6287.
[2] 2021 ONCA 161.
[3] 2019 ONCA 978.
[4] 2012 ONCA 468.
[5] 2015 MBCA 33, para 14.
[6] 2019 ABCA 136, paras 76, 89, 93, 94.
[7] Citing Kurt v Kurt and Sullivan, 2023 ONSC 6599, paras 30, 32.
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