1. Introduction
In this blog I want to consider the interaction between section 31 of the Succession Law Reform Act[1] and the armchair principle when a gift lapses. In the course of my discussion, I shall consider a number of reported cases.
Section 23 of the SLRA provides, ‘Except where a contrary intention appears by the will’, when a specific gift lapses the property falls into residue. There is no statutory provision that addresses what happens when a residuary gift lapses, but the common law provides that a lapsed residuary gift goes out on an intestacy. However, section 31 provides for substitutional gifts in certain circumstances. It provides:
Except when a contrary intention appears by the will, where a devise or bequest is made to a child, grandchild, brother or sister of the testator who dies before the testator, either before or after the testator makes his or her will, and leaves a spouse or issue surviving the testator, the devise or bequest does not lapse but takes effect as if it had been made directly to the persons among whom and in the shares in which the estate of that person would have been divisible.
- if that person had died immediately after the death of the testator;
- if that person had died intestate;
- if that person had died without debt; and
- if section 45 had not been passed.[2]
The anti-lapse legislation applies also to residuary gifts.[3]
I have emphasised the first clause of section 31 because it will factor in my argument. Incidentally, there are six other sections in the SLRA that contain such a clause[4] but they are not relevant to my argument.
The issue I wish to explore is whether the clause ‘Except when a contrary intention appears by the will’ overrides and supplants the now commonly accepted application of the armchair principle
2. Discussion
2.1 The Armchair Principle
I have written extensively about the armchair principle, both in various blogs and in my Wills text.[5]
In a blog posted in 2024,[6] I outlined the nineteenth century strict construction, objective approach to interpreting wills. It demanded that a court should construe a will without regard to any evidence other than the will itself. Only if the language of the will was ambiguous could the court consider evidence of surrounding circumstances. That approach led to many misinterpretations of wills, some of which I describe in the blog.
I then went on to describe how the objective approach was replaced by the subjective approach. That change began already early in the twentieth century with a decision of the Supreme Court of Canada,[7] a decision of the House of Lords,[8] and a decision of the Ontario Court of Appeal.[9] More recently the subjective approach was endorsed in a number of appellate courts.[10] These cases have made clear that not only may the courts consider extrinsic evidence when interpreting wills, they must do so when they begin the interpretation process. The switch to the subjective approach was preceded by a change in the interpretation of contractual documents. As regards the latter, Rothstein J said in Creston Moly Corp v Sattva Capital Corp:[11]
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.
Consequently, in RP Johnson Family Trust (Trustees of) v Johnson[12] Steeves J stated:
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 to construe the will in light of those surrounding circumstances…
And in Zindler v Salvation Army[13] Justice Beard said:
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[14] principles to the interpretation of contracts, as set out in King,[15] and Sattva,[16] 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.
The reason for describing the development of the law concerning the interpretation of wills and the current status of that law was to critique the decision in Gilchrist v Gilchrist,[17] a case involving very disturbing facts, in which the application judge refused to apply the armchair rule because in his opinion the language of the will was clear and unambiguous. Thus, in essence, the application judge applied the nineteenth century strict construction, objective approach to the interpretation of the will. Sadly, the Court of Appeal affirmed in unreported reasons.[18] But, regardless, the description of the development of the law on the interpretation of wills is relevant to cases involving the application of section 31 of the SLRA. I now turn to those cases.
2.2 Contrary Intention
The issue I now want to explore is the effect of the opening clause of section 31, ‘Except when a contrary intention appears by the will’ and the interaction of that clause with the law that requires the court to interpret a will in the context of surrounding circumstances. I confess that originally, I was of opinion that the opening clause of section 31 ousts the armchair principle, on the ground that the court cannot ignore the language of the statute. However, as I shall explain, I have come to a different conclusion, which I shall express after looking at a number of cases.
A large number of cases take the view that section 31 is ousted only if the will itself expresses a contrary intention, but most do not consider the armchair rule.[19]
Other cases do consider surrounding circumstances when the will was made.[20] In Devonport v Devonport,[21] the application judge did discuss the armchair rule but concluded that the will did not show a contrary intention so as to oust section 31 of the SLRA. The Court of Appeal confirmed.
There are however a number of cases in which the courts held that they could and ought to consider the surrounding circumstances when the will was made and that the interpretation of the will in light of the surrounding circumstances can trump the ‘Except when a contrary intention appears by the will’ clause of section 31.
The first case is Mladen Estate v McGuire.[22] The testator left 50% of the residue of her estate to her aunt and 25% of the remainder to each of two named first cousins. The aunt predeceased her. The testator also had three other first cousins, but they were strangers to her, whereas she was close to the two named first cousins, and referred to them as her ‘only cousins. Justice Belobaba found that there was no contrary intention in the will. And normally that would mean that the gift to the aunt would lapse and go to the five cousins as on an intestacy. However, he held that he was permitted to sit in the testator’s armchair to consider extrinsic evidence, and when he did so he found a contrary intention in the will interpreted in light of the surrounding circumstances, namely that the testator intended two named first cousins to benefit.
In Frolich Estate v Wedekind[23] the court followed Mladen. The testator’s will leaves a gift of a portion of the residue to her deceased husband’s nephew. He predeceased her. The court considered that the testator had a special relationship with her named residuary beneficiaries and inferred that she wished only those persons to inherit the residue. In other words, the court found a contrary intention the will as interpreted in light of the extrinsic evidence. Hence, the lapsed gift went the surviving named residuary beneficiaries, rather than under an intestacy to the testator’s traceable next-of-kin. The court was also mindful of the ‘golden rule’ that when there are two possible interpretations to a will, the interpretation that favours testacy, rather than intestacy, should be preferred.
A third case, Dokis v Burgaretta[24] reached a similar conclusion. The case concerned a holograph will, which the court held to be valid. However, Justice Papageorgiou found that, with one exception, the alterations to the will were invalid because they had not been properly signed. The will left one third of the residue to the testator’s brother, Leonard. Leonard predeceased her. Therefore, next to the gift to Leonard she wrote. ‘His heirs are excluded from my will except for his four children named below’. However, the alteration was invalid since it was not signed. The court noted that when interpreting a will, the court must determine the testator’s actual or subjective intention from the will itself and the surrounding circumstances. Since the alteration with respect to the gift to Leonard was invalid, the gift to him would normally lapse and go out on an intestacy. However, it would pass to his heirs under section 31 unless there was a contrary intention. The court found that the testator did not express a contrary intention since the alteration was invalid. Indeed, she specifically intended to benefit Leonard’s children, since she named them as beneficiaries of a share of two-thirds of the residue. Accordingly, Leonard’s share passed to his children under section 31.
Another named residuary beneficiary, a nephew of the testator, also predeceased her. There was no note beside his name. Of course, section 31 did not apply to this gift. On the question what should happen to it, the court made the following remarks:
61 Given the golden rule, in my view, notwithstanding that s. 31 of the SLRA does not apply, the court may still consider the surrounding circumstances in determining whether the testator’s intention was that a lapsed gift would pass on an intestacy or be distributed per capita to existing beneficiaries.
62 This approach is also not inconsistent with s. 31 of the SLRA. What s. 31 does is mandate that where the gift is to a child, grandchild, brother, or sister of the testator who dies before the testator it shall not lapse but shall pass to their heirs unless a contrary intention appears.
63 This does not exclude the court’s ability to construe the testator’s intention with respect to other types of beneficiaries who do not fall into those categories. To put it another way, s. 31 does not oust the court’s ability to construe the will and seek to ascertain the testator’s intention with respect to a lapsed gift to individuals not included in s. 31, if that is possible taking into account the surrounding circumstances. The aforementioned case law is consistent with this.
64 In this case, the testator demonstrated a reasonable understanding of drafting a testamentary instrument, including establishing executors, payment, Powers of Attorney, transferring property to the residue and providing instructions on liquidation and transfers.
65 In that regard, the testator was very clear to select certain family members who she wanted to benefit including the children of her brother Leonard, but not the issue of other listed beneficiaries. She specifically excluded some beneficiaries who would take on an intestacy. Therefore, she would not have intended that the gifts she set out would lapse and that they should proceed on an intestacy because this would mean that family members that she specifically excluded would benefit.
66 Therefore, this gift should be added to the residue and distributed per capita. I discern no intention on the part of the testator that the bequest to Mr. Sawyer be distributed to his issue.
The court applied the same reasoning to a gift of a portion of the residue to the testator’s brother-in-law.[25]
3. Analysis and Conclusion
In my opinion the arguments and conclusions made by the courts in Devonport, Mladen, Frolich, and Dokis are unassailable. A court that interprets a will may not simply rely on the language of the will. It is required to ascertain the testator’s subjective intention. It must do so by considering the circumstances surrounding the making of the will together with the will itself. Thus, the testator’s intentions are found in the will and the surrounding circumstances. The two are indelibly linked. It follows in my opinion that when the court is obliged to consider a statutory provision such as section 31 of the SLRA, it must consider whether the will and the surrounding circumstances together evince a contrary intention. Were it otherwise, it would take us back to the nineteenth century, strict construction, objective interpretation of wills.
Some may disagree with me and may feel that section 31 (and the other sections that speak of a contrary intention that appears by the will) should be amended. I would not object to that. Indeed, as I have said on a number of occasions, we badly need a complete revision of the SLRA.
The readers may wonder why we have the clause, ‘Except when a contrary intention appears by the will’ in the first place. The answer is simple. It was contained in section 33 of the English Wills Act, 1837,[26] and the colonies simply copied it so that it became part of their will’s legislation. But this provenance is telling. 1837 was the height of the nineteenth century, strict construction, objective approach to interpreting wills. Since we have long since shed that approach, we would do well to get rid of this provision.
It is, in fact, relatively easy to correct section 31. Section 32(1) of Alberta’s Wills and Succession Act[27] contains the following helpful redaction. It provides in part:[28]
If a beneficial disposition in a will cannot take effect because the intended beneficiary has predeceased the testator, whether before or after the will is made, then unless the Court in interpreting the will, finds that the testator had a contrary intention, the property that is the subject of the disposition must be distributed, …
I think that will do the trick, although, ex abundanti cautela,[29] we should probably amend the wording slightly by inserting the underlined words, shown in the quotation below:
then unless the Court in interpreting the will in light of surrounding circumstances at the time the will was made, finds that the testator had a contrary intention
—
[1] RSO 1990, c S.26 (‘SLRA’).
[2] There are similar provisions in the wills statutes of all other Canadian common law jurisdictions. Section 45, mentioned in s 31(d) makes provision for the preferential share of a spouse, and as indicated by s 31(d) it does not apply to the operation of s 31.
[3] Rothstein Estate v Rothstein 1996 CarswellBC 15, 11 ETR 2d 125 (SC); Re Bennett Estate, 2002 SKQB 162.
[4] Section 22 (will speaks from death);
Section 23 (disposition of void devise or bequest);
Section 24 (devise of real property includes leasehold estates);
Section 25 (disposition of real and personal property 0ver which the testator has power of appointment passes under the devise or bequest);
Section 26 (real property passing under devise with words of limitation passes the fee simple); and
Section 27 (use of word ‘heir’ or ‘heirs’ refers to testator’s intestate heirs).
[5] See, Oosterhoff on Wills, 9th ed by Albert H Oosterhoff, C David Freedman, Mitchell McInnes, and Adam Parachin (Toronto: Thomson Reuters, 2021), §§13.6.1, 13.6.2.
[6] https://welpartners.com/blog/2024/03/armchair-principle-not-used-to-save-undisposed-of-gift.
[7] Marks v Marks (1908), 40 SCR 210, per Idington J.
[8] Perrin v Morgan, [1943’ AC 399 (HL), at 420 per Lord Romer, and at 415 per Lord Atkin.
[9] Re Burke (1959), 20 DLR 2d 396, per Laidlaw JA.
[10] Haidl v Sacher, 1979 CarswellSask 131, 106 DLR 3d 360 (CA); Zindler v Salvation Army, 2015 MBCA 33; Hicklin Estate v Hicklin, 2019 ABCA 136; Trezzi v Trezzi, 2019 ONCA 978; Ross v Canada Trust Co, 2021 ONCA 161;
[11] 2014 SCC 53, para 50.
[12] 2014 BCSC 1889, para 15.
[13] Footnote 10, supra, para 10.
[14] Housen v Nikolaison, 2002 SCC 33, para 37.
[15] King v Operating Engineers Training Institute of Manitoba Inc, 2011 MBCA 80, paras 19-29.
[16] Footnote 11, supra, para 50.
[17] 2023 SKKB 187.
[18] I attached the reasons of the Court of Appeal as an appendix to my blog
[19] See, e.g., Doucette v Fedoruk Estate (1992), 99 DLR 4th 68 (Man CA); Smith Estate v Davis, 2002 CarswellOnt 1607, 46 ETR 2d 135 (SCJ); Dewitt v Taggart Estate, 2006 CarswellOnt 4822 (SCJ); Walt Estate v Williams, 1997 CarswellBC 1876.
[20] See, e.g., Moore v Moore, 1982 CarswellAlta 204 (QB)
[21] 2024 ONSC 6764, affirmed 2025 ONCA 753.
[22] 2007 CarswellOnt 1976, 29 ETR 3d 298.
[23] 2012 ONSC 3775.
[24] 2025 ONSC 4287. And see also the blog https://welpartners.com/blog/?s=Dokis, by my colleague, Gabriella Banhara.
[25] See also Campbell v Shamata, 2002 CarswellOnt 58 (SCJ).
[26] 7 Will 4 & 1 Vict, c 26. See the reference in Moore v Moore, footnote 19, supra, para 19, where the court in that case refers to and follows Re Meredith; Davies v Davies, [1924] 2 Ch 552. The Meredith case made reference to section 33 of the Wills Act, 1837.
[27] SA 2010, c W-12.2.
[28] Emphasis supplied.
[29] I.e., out of abundant caution.
Menu
Written by: Albert Oosterhoff
Posted on: February 13, 2026
Categories: Commentary, WEL Newsletter
1. Introduction
In this blog I want to consider the interaction between section 31 of the Succession Law Reform Act[1] and the armchair principle when a gift lapses. In the course of my discussion, I shall consider a number of reported cases.
Section 23 of the SLRA provides, ‘Except where a contrary intention appears by the will’, when a specific gift lapses the property falls into residue. There is no statutory provision that addresses what happens when a residuary gift lapses, but the common law provides that a lapsed residuary gift goes out on an intestacy. However, section 31 provides for substitutional gifts in certain circumstances. It provides:
Except when a contrary intention appears by the will, where a devise or bequest is made to a child, grandchild, brother or sister of the testator who dies before the testator, either before or after the testator makes his or her will, and leaves a spouse or issue surviving the testator, the devise or bequest does not lapse but takes effect as if it had been made directly to the persons among whom and in the shares in which the estate of that person would have been divisible.
The anti-lapse legislation applies also to residuary gifts.[3]
I have emphasised the first clause of section 31 because it will factor in my argument. Incidentally, there are six other sections in the SLRA that contain such a clause[4] but they are not relevant to my argument.
The issue I wish to explore is whether the clause ‘Except when a contrary intention appears by the will’ overrides and supplants the now commonly accepted application of the armchair principle
2. Discussion
2.1 The Armchair Principle
I have written extensively about the armchair principle, both in various blogs and in my Wills text.[5]
In a blog posted in 2024,[6] I outlined the nineteenth century strict construction, objective approach to interpreting wills. It demanded that a court should construe a will without regard to any evidence other than the will itself. Only if the language of the will was ambiguous could the court consider evidence of surrounding circumstances. That approach led to many misinterpretations of wills, some of which I describe in the blog.
I then went on to describe how the objective approach was replaced by the subjective approach. That change began already early in the twentieth century with a decision of the Supreme Court of Canada,[7] a decision of the House of Lords,[8] and a decision of the Ontario Court of Appeal.[9] More recently the subjective approach was endorsed in a number of appellate courts.[10] These cases have made clear that not only may the courts consider extrinsic evidence when interpreting wills, they must do so when they begin the interpretation process. The switch to the subjective approach was preceded by a change in the interpretation of contractual documents. As regards the latter, Rothstein J said in Creston Moly Corp v Sattva Capital Corp:[11]
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.
Consequently, in RP Johnson Family Trust (Trustees of) v Johnson[12] Steeves J stated:
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 to construe the will in light of those surrounding circumstances…
And in Zindler v Salvation Army[13] Justice Beard said:
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[14] principles to the interpretation of contracts, as set out in King,[15] and Sattva,[16] 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.
The reason for describing the development of the law concerning the interpretation of wills and the current status of that law was to critique the decision in Gilchrist v Gilchrist,[17] a case involving very disturbing facts, in which the application judge refused to apply the armchair rule because in his opinion the language of the will was clear and unambiguous. Thus, in essence, the application judge applied the nineteenth century strict construction, objective approach to the interpretation of the will. Sadly, the Court of Appeal affirmed in unreported reasons.[18] But, regardless, the description of the development of the law on the interpretation of wills is relevant to cases involving the application of section 31 of the SLRA. I now turn to those cases.
2.2 Contrary Intention
The issue I now want to explore is the effect of the opening clause of section 31, ‘Except when a contrary intention appears by the will’ and the interaction of that clause with the law that requires the court to interpret a will in the context of surrounding circumstances. I confess that originally, I was of opinion that the opening clause of section 31 ousts the armchair principle, on the ground that the court cannot ignore the language of the statute. However, as I shall explain, I have come to a different conclusion, which I shall express after looking at a number of cases.
A large number of cases take the view that section 31 is ousted only if the will itself expresses a contrary intention, but most do not consider the armchair rule.[19]
Other cases do consider surrounding circumstances when the will was made.[20] In Devonport v Devonport,[21] the application judge did discuss the armchair rule but concluded that the will did not show a contrary intention so as to oust section 31 of the SLRA. The Court of Appeal confirmed.
There are however a number of cases in which the courts held that they could and ought to consider the surrounding circumstances when the will was made and that the interpretation of the will in light of the surrounding circumstances can trump the ‘Except when a contrary intention appears by the will’ clause of section 31.
The first case is Mladen Estate v McGuire.[22] The testator left 50% of the residue of her estate to her aunt and 25% of the remainder to each of two named first cousins. The aunt predeceased her. The testator also had three other first cousins, but they were strangers to her, whereas she was close to the two named first cousins, and referred to them as her ‘only cousins. Justice Belobaba found that there was no contrary intention in the will. And normally that would mean that the gift to the aunt would lapse and go to the five cousins as on an intestacy. However, he held that he was permitted to sit in the testator’s armchair to consider extrinsic evidence, and when he did so he found a contrary intention in the will interpreted in light of the surrounding circumstances, namely that the testator intended two named first cousins to benefit.
In Frolich Estate v Wedekind[23] the court followed Mladen. The testator’s will leaves a gift of a portion of the residue to her deceased husband’s nephew. He predeceased her. The court considered that the testator had a special relationship with her named residuary beneficiaries and inferred that she wished only those persons to inherit the residue. In other words, the court found a contrary intention the will as interpreted in light of the extrinsic evidence. Hence, the lapsed gift went the surviving named residuary beneficiaries, rather than under an intestacy to the testator’s traceable next-of-kin. The court was also mindful of the ‘golden rule’ that when there are two possible interpretations to a will, the interpretation that favours testacy, rather than intestacy, should be preferred.
A third case, Dokis v Burgaretta[24] reached a similar conclusion. The case concerned a holograph will, which the court held to be valid. However, Justice Papageorgiou found that, with one exception, the alterations to the will were invalid because they had not been properly signed. The will left one third of the residue to the testator’s brother, Leonard. Leonard predeceased her. Therefore, next to the gift to Leonard she wrote. ‘His heirs are excluded from my will except for his four children named below’. However, the alteration was invalid since it was not signed. The court noted that when interpreting a will, the court must determine the testator’s actual or subjective intention from the will itself and the surrounding circumstances. Since the alteration with respect to the gift to Leonard was invalid, the gift to him would normally lapse and go out on an intestacy. However, it would pass to his heirs under section 31 unless there was a contrary intention. The court found that the testator did not express a contrary intention since the alteration was invalid. Indeed, she specifically intended to benefit Leonard’s children, since she named them as beneficiaries of a share of two-thirds of the residue. Accordingly, Leonard’s share passed to his children under section 31.
Another named residuary beneficiary, a nephew of the testator, also predeceased her. There was no note beside his name. Of course, section 31 did not apply to this gift. On the question what should happen to it, the court made the following remarks:
61 Given the golden rule, in my view, notwithstanding that s. 31 of the SLRA does not apply, the court may still consider the surrounding circumstances in determining whether the testator’s intention was that a lapsed gift would pass on an intestacy or be distributed per capita to existing beneficiaries.
62 This approach is also not inconsistent with s. 31 of the SLRA. What s. 31 does is mandate that where the gift is to a child, grandchild, brother, or sister of the testator who dies before the testator it shall not lapse but shall pass to their heirs unless a contrary intention appears.
63 This does not exclude the court’s ability to construe the testator’s intention with respect to other types of beneficiaries who do not fall into those categories. To put it another way, s. 31 does not oust the court’s ability to construe the will and seek to ascertain the testator’s intention with respect to a lapsed gift to individuals not included in s. 31, if that is possible taking into account the surrounding circumstances. The aforementioned case law is consistent with this.
64 In this case, the testator demonstrated a reasonable understanding of drafting a testamentary instrument, including establishing executors, payment, Powers of Attorney, transferring property to the residue and providing instructions on liquidation and transfers.
65 In that regard, the testator was very clear to select certain family members who she wanted to benefit including the children of her brother Leonard, but not the issue of other listed beneficiaries. She specifically excluded some beneficiaries who would take on an intestacy. Therefore, she would not have intended that the gifts she set out would lapse and that they should proceed on an intestacy because this would mean that family members that she specifically excluded would benefit.
66 Therefore, this gift should be added to the residue and distributed per capita. I discern no intention on the part of the testator that the bequest to Mr. Sawyer be distributed to his issue.
The court applied the same reasoning to a gift of a portion of the residue to the testator’s brother-in-law.[25]
3. Analysis and Conclusion
In my opinion the arguments and conclusions made by the courts in Devonport, Mladen, Frolich, and Dokis are unassailable. A court that interprets a will may not simply rely on the language of the will. It is required to ascertain the testator’s subjective intention. It must do so by considering the circumstances surrounding the making of the will together with the will itself. Thus, the testator’s intentions are found in the will and the surrounding circumstances. The two are indelibly linked. It follows in my opinion that when the court is obliged to consider a statutory provision such as section 31 of the SLRA, it must consider whether the will and the surrounding circumstances together evince a contrary intention. Were it otherwise, it would take us back to the nineteenth century, strict construction, objective interpretation of wills.
Some may disagree with me and may feel that section 31 (and the other sections that speak of a contrary intention that appears by the will) should be amended. I would not object to that. Indeed, as I have said on a number of occasions, we badly need a complete revision of the SLRA.
The readers may wonder why we have the clause, ‘Except when a contrary intention appears by the will’ in the first place. The answer is simple. It was contained in section 33 of the English Wills Act, 1837,[26] and the colonies simply copied it so that it became part of their will’s legislation. But this provenance is telling. 1837 was the height of the nineteenth century, strict construction, objective approach to interpreting wills. Since we have long since shed that approach, we would do well to get rid of this provision.
It is, in fact, relatively easy to correct section 31. Section 32(1) of Alberta’s Wills and Succession Act[27] contains the following helpful redaction. It provides in part:[28]
If a beneficial disposition in a will cannot take effect because the intended beneficiary has predeceased the testator, whether before or after the will is made, then unless the Court in interpreting the will, finds that the testator had a contrary intention, the property that is the subject of the disposition must be distributed, …
I think that will do the trick, although, ex abundanti cautela,[29] we should probably amend the wording slightly by inserting the underlined words, shown in the quotation below:
then unless the Court in interpreting the will in light of surrounding circumstances at the time the will was made, finds that the testator had a contrary intention
—
[1] RSO 1990, c S.26 (‘SLRA’).
[2] There are similar provisions in the wills statutes of all other Canadian common law jurisdictions. Section 45, mentioned in s 31(d) makes provision for the preferential share of a spouse, and as indicated by s 31(d) it does not apply to the operation of s 31.
[3] Rothstein Estate v Rothstein 1996 CarswellBC 15, 11 ETR 2d 125 (SC); Re Bennett Estate, 2002 SKQB 162.
[4] Section 22 (will speaks from death);
Section 23 (disposition of void devise or bequest);
Section 24 (devise of real property includes leasehold estates);
Section 25 (disposition of real and personal property 0ver which the testator has power of appointment passes under the devise or bequest);
Section 26 (real property passing under devise with words of limitation passes the fee simple); and
Section 27 (use of word ‘heir’ or ‘heirs’ refers to testator’s intestate heirs).
[5] See, Oosterhoff on Wills, 9th ed by Albert H Oosterhoff, C David Freedman, Mitchell McInnes, and Adam Parachin (Toronto: Thomson Reuters, 2021), §§13.6.1, 13.6.2.
[6] https://welpartners.com/blog/2024/03/armchair-principle-not-used-to-save-undisposed-of-gift.
[7] Marks v Marks (1908), 40 SCR 210, per Idington J.
[8] Perrin v Morgan, [1943’ AC 399 (HL), at 420 per Lord Romer, and at 415 per Lord Atkin.
[9] Re Burke (1959), 20 DLR 2d 396, per Laidlaw JA.
[10] Haidl v Sacher, 1979 CarswellSask 131, 106 DLR 3d 360 (CA); Zindler v Salvation Army, 2015 MBCA 33; Hicklin Estate v Hicklin, 2019 ABCA 136; Trezzi v Trezzi, 2019 ONCA 978; Ross v Canada Trust Co, 2021 ONCA 161;
[11] 2014 SCC 53, para 50.
[12] 2014 BCSC 1889, para 15.
[13] Footnote 10, supra, para 10.
[14] Housen v Nikolaison, 2002 SCC 33, para 37.
[15] King v Operating Engineers Training Institute of Manitoba Inc, 2011 MBCA 80, paras 19-29.
[16] Footnote 11, supra, para 50.
[17] 2023 SKKB 187.
[18] I attached the reasons of the Court of Appeal as an appendix to my blog
[19] See, e.g., Doucette v Fedoruk Estate (1992), 99 DLR 4th 68 (Man CA); Smith Estate v Davis, 2002 CarswellOnt 1607, 46 ETR 2d 135 (SCJ); Dewitt v Taggart Estate, 2006 CarswellOnt 4822 (SCJ); Walt Estate v Williams, 1997 CarswellBC 1876.
[20] See, e.g., Moore v Moore, 1982 CarswellAlta 204 (QB)
[21] 2024 ONSC 6764, affirmed 2025 ONCA 753.
[22] 2007 CarswellOnt 1976, 29 ETR 3d 298.
[23] 2012 ONSC 3775.
[24] 2025 ONSC 4287. And see also the blog https://welpartners.com/blog/?s=Dokis, by my colleague, Gabriella Banhara.
[25] See also Campbell v Shamata, 2002 CarswellOnt 58 (SCJ).
[26] 7 Will 4 & 1 Vict, c 26. See the reference in Moore v Moore, footnote 19, supra, para 19, where the court in that case refers to and follows Re Meredith; Davies v Davies, [1924] 2 Ch 552. The Meredith case made reference to section 33 of the Wills Act, 1837.
[27] SA 2010, c W-12.2.
[28] Emphasis supplied.
[29] I.e., out of abundant caution.
Author
View all posts