In the recent decision of Ward v. Ward (“Ward”),[1] the court was required to interpret the terms of a Last Will and Testament and specifically the mechanisms of a right to purchase real property belonging to the Estate.
Background
Ward concerned the Estate of Norman Keith Ward (the “Deceased”), who died in 2017. The Deceased was survived by his wife, Susan Ward (“Susan”), who died several years later in 2022. Together, the Deceased and Susan had two children – Warren Ward (the “Applicant”) and Brodie Ward (the “Respondent”).[2]
The Deceased had a Last Will and Testament dated December 19, 2012 (the “2012 Will”), which appointed the Applicant as Estate Trustee. The Application concerned the disposition of the Deceased’s real property, municipally known as Lot 16, Concession 9, in the Town of Pickering, ON (the “Pickering Property”).[3]
The 2012 Will and the right to purchase
The 2012 Will granted Susan with a life interest in the Pickering Property (or until she remarried or cohabited).[4]
The 2012 Will then afforded the Respondent with the first opportunity to purchase the Pickering Property at “fair market value”. Should the Respondent not, “exercise his right to purchase the said property within thirty (30) days of receiving notice that the property is available for purchase, he shall be deemed to have waived his rights”.[5]
To the extent the Respondent waived his right to purchase, the Applicant was then afforded the second right to purchase the Pickering Property at fair market value. Failing that, the Deceased’s stepson, Michael, would have the third option.[6]
If all three optionees declined to exercise their right to purchase the Pickering Property, the 2012 Will dictated that it be sold on the open market.[7]
Notice and option to purchase
On November 3, 2022, the Applicant sent an email to the Respondent in which he stated:
I am now giving you notice as per Page 3 Point (e) of the will of Keith Ward that you now have 30 days to exercise your rights to purchase the Property That is currently [held] in the Estate of Keith Ward.[8]
On December 2, 2022, the Respondent replied to the email stating:
I have full intention of buying the property spoken of in the Keith Ward Will […]
There are other issues needing resolution with the Estate and final purchase of the house and lot. This will be brought to your attention in the near future.[9]
The parties were unable to agree on the fair market value of the property or the basis for that valuation. The property continued to form part of the residue of the Estate and was maintained by the Applicant.[10]
In 2024, the Applicant obtained an appraisal of the Pickering Property. It based the value of the property on the fact that the two lots could be conveyed separately. The Applicant’s appraisal established a fair market value for the property of $1.8 million, comprised of $1.3 million for the dwelling lot and $500,000 for the vacant lot.[11]
Legal Issue
The central legal issue for the Honourable Justice McCarthy to address in Ward was whether the Respondent should be permitted to purchase the Pickering Property and if so, for what price.
The Applicant’s position
The Applicant, as Estate Trustee, argued that the Respondent failed to exercise his right to purchase the property at fair market value. In this regard, the Respondent did not:
- make any formal offer to purchase;
- submit any agreement of purchase and sale;
- submit a deposit;
- offer or suggest a purchase price;
- state any conditions;
- propose a closing date; or
- provide any evidence that he had the financial means to purchase the property or that he had been approved for a mortgage.[12]
The Applicant relied on the decision in The Estate of Ingrid Loveman, Deceased,[13] in which the court held that “[a]cting upon a decision to purchase real property equates with executing an Agreement of Purchase and Sale or otherwise committing to enforceable terms by which the property is to be acquired”.[14] In accordance with the successive rights contemplated in the 2012 Will, the Applicant ought now to be permitted to purchase the Pickering Property at the fair market value established in his appraisal.[15]
In the alternative, the Applicant contended that should the Court decide to afford the Respondent an opportunity to purchase the Pickering Property, it should be at fair market value as established in his appraisal.[16]
The Respondent’s position
The Respondent, meanwhile, was of the view that he did provide notice of his intention to purchase the Pickering Property. Accordingly, he should be permitted to do so at the fair market value of the property as it was on the date the property became available for purchase, namely the date of Susan’s death on April 19, 2022.[17]
Governing Legal Principles
Will interpretation
Justice McCarthy highlighted the general approach to the interpretation of wills, as summarised by Justice Brown in Kaptyn Estate, Re:[18]
When a court interprets a person’s will, it seeks to determine the disposition of the property intended by the testator, in other words, to ascertain the testator’s true intention.
[…]
In interpreting a will, a court seeks to ascertain, if possible, the testator’s actual or subjective intent, as opposed to an objective intent presumed by law.
[…]
As I read the authorities, the prevailing approach to will interpretation requires a court to concentrate on the subjective meaning of the words used by a testator in his will. A court should consider the words used in the light of surrounding circumstances and by considering other admissible evidence, and give the words placed in a will the meaning intended by the particular testator.
[…]
As the Court of Appeal observed in Burke (Re) in applying the “armchair rule” a court should put itself in the place of the testator at the time he made his will and concentrate “on the circumstances which then existed, and which might reasonably be expected to influence the testator in a disposition of his property.”
The even-hand rule
The court also considered the governing duties and obligations of an Estate Trustee. The primary duty of an Estate Trustee is to faithfully carry out the testator’s wishes and to administer the estate strictly in accordance with the terms of the will.[19]
Estate trustees are bound by the “even-hand rule”. As such, they must act with impartiality and not favour one beneficiary over others. This is especially present when an individual is both Estate Trustee and a beneficiary. Estate trustees are afforded some discretion in the exercise of their powers, but that discretion must be exercised fairly.[20]
The Estate Trustee’s primary obligation is to carry out the wishes of the testator as set out in their will. And while he has an obligation to honor specific bequests and to treat beneficiaries even-handedly, an Estate Trustee must do so in accordance with the instructions in the will. Departure from the instructions and wording in the will should only be permitted upon receiving directions from court.[21]
Analysis
Did the Respondent exercise his right to purchase the Pickering Property?
The Court found that the Respondent sufficiently exercised their right to purchase the Pickering Property through his email to the Applicant dated December 2, 2022. He did so within 30 days of receiving notice that the property was available for purchase. The Respondent should therefore be afforded the opportunity to purchase the property at fair market value.[22]
In Justice McCarthy’s view, the Deceased’s use of the words “right”, “first opportunity” and “waived his rights” in the 2012 Will demonstrated a settled intention to afford the successive optionees a reasonable and relatively informal option of purchasing the property within a thirty-day window of “receiving notice” that the property was available for purchase.[23]
In this regard, His Honour noted that:
The testator’s scheme does not amount to a sophisticated or complex commercial arrangement. It was meant to be straightforward: if one of his sons wanted to purchase the property, he could elect to do so but would be required to pay a fair price. Other than the order in which the rights could be exercised, there was no express preference or favoritism, and no advantage, discount or bargain available to any of the optionees.[24] (emphasis added)
Accordingly, the Court was not prepared to read language into the 2012 Will that would serve to impose requirements on an optionee to either: (a) submit a formal offer to purchase, (b) provide proof of financing or (c) make a deposit.[25]
When was the Pickering Property available for purchase?
The Court noted that the 2012 Will did not explicitly state when the Pickering Property would be “available for purchase”. The scheme for options to purchase required the life interest of Susan to terminate before the property could devolve into the residue of the Estate. Only then could the property be sold.[26]
Unfortunately, the 2012 Will did not direct how, when, or if at all, the Estate Trustee would be compelled to sell the Pickering Property, make it available for purchase or provide notice to an optionee.[27]
As such, the Court found that the option to purchase must be read in conjunction with the entirety of the 2012 Will, including paragraph 7. There, the Deceased conferred specific powers on the Estate Trustee in relation to selling, disposing, and retention of assets. Moreover, the Estate Trustee is given specific powers to improve and manage the real property. At the same time, the Deceased conferred upon them the ability to exercise his absolute discretion at any time.[28]
Specifically, under sub-paragraph 7(3) of the 2012 Will, the Applicant as Estate Trustee is empowered to, “…hold any of my assets or investments in the form in which they may be at the time of my death for any length of time…”.[29]
Further still, as for real property, under sub-paragraph 7(6) the Applicant is empowered, “…to expend money out of the income or capital or my estate for repairs and improvements, and generally manage the property”.[30]
By appointing the Applicant as Estate Trustee, the Deceased empowered him to administer the Estate in accordance with the directions in the 2012 Will but also within his absolute discretion. Justice McCarthy found it was a reasonable exercise of the Applicant’s absolute discretion to retain the Pickering Property in the Estate until he determined that it was appropriate to sell it at which time it became available for purchase by the optionees or on the open market.[31]
What is the fair market value of the Pickering Property?
The 2012 Will did not provide for how or when fair market value would be determined for the Pickering Property.[32]
In the Court’s view, a proper reading of the 2012 Will is that fair market value could only be determined or agreed upon after the date when the Respondent exercised his right to purchase the property – this was December 2, 2022. Only after receiving that notice from the Respondent was the Applicant as Estate Trustee compelled to establish fair market value with a view to complying with the terms of the trust and carrying out the conveyance.[33]
Disposition
In summary, Justice McCarthy made the following Orders:
- The Respondent shall have 30 days from the date of their Reasons to offer to purchase the Pickering Property for the fair market value established in the Applicant’s appraisal ($1.8 million). The offer shall be made in writing;
- Should the Respondent fail to offer to purchase the Pickering Property for the appraised value within 30 days of the Reasons, he shall be deemed to have waived his rights under the 2012 Will; and
- Upon the waiver of the Respondent’s rights, the Estate Trustee shall follow the process outlined in the 2012 Will for the disposition of the Pickering Property.[34]
Concluding Comments
The decision in Ward is indicative of how the Court engages in an interpretation of a Last Will and Testament. Moreover, that when a Will gives a right to purchase, it must be interpreted within the context of the whole document and with respect to the relationship of the relevant parties. In this regard, the Court in Ward noted the Deceased’s familial relationship with the Applicant and the Respondent and that the right to purchase under the 2012 Will was not intended to be a complex, or sophisticated commercial arrangement.
—
[1] Ward v. Ward, 2026 ONSC 824 (“Ward”).
[2] Ward at paras 1 – 3.
[3] Ward at paras 1 and 7.
[4] Ward at para 7.
[5] Ibid.
[6] Ibid.
[7] Ibid.
[8] Ward at para 17.
[9] Ward at para 18.
[10] Ward at para 19.
[11] Ward at para 20.
[12] Ward at para 21.
[13] The Estate of Ingrid Loveman, Deceased, 2016 ONSC 2687.
[14] Ibid. at para 27.
[15] Ward at para 22.
[16] Ward at para 23.
[17] Ward at para 24.
[18] Kaptyn Estate, Re, 2010 ONSC 4293, 102 O.R. (3d) 1, at paras. 30-35.
[19] Eaman v. Banford, 2025 ONSC 4712, at para. 15.
[20] In the Estate of Norma Baer, (deceased), 2014 ONSC 4468, at para. 18.
[21] Ward at para 29.
[22] Ward at para 36.
[23] Ward at para 30.
[24] Ward at para 33.
[25] Ward at para 34.
[26] Ward at para 37.
[27] Ward at para 38.
[28] Ward at para 41.
[29] Ward at paras 42 and 43. (emphasis added)
[30] Ward at para 43.
[31] Ward at para 44.
[32] Ward at paras 51 and 52.
[33] Ward at para 55.
[34] Ward at para 66.
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Written by: Oliver O'Brien
Posted on: March 6, 2026
Categories: Commentary
In the recent decision of Ward v. Ward (“Ward”),[1] the court was required to interpret the terms of a Last Will and Testament and specifically the mechanisms of a right to purchase real property belonging to the Estate.
Background
Ward concerned the Estate of Norman Keith Ward (the “Deceased”), who died in 2017. The Deceased was survived by his wife, Susan Ward (“Susan”), who died several years later in 2022. Together, the Deceased and Susan had two children – Warren Ward (the “Applicant”) and Brodie Ward (the “Respondent”).[2]
The Deceased had a Last Will and Testament dated December 19, 2012 (the “2012 Will”), which appointed the Applicant as Estate Trustee. The Application concerned the disposition of the Deceased’s real property, municipally known as Lot 16, Concession 9, in the Town of Pickering, ON (the “Pickering Property”).[3]
The 2012 Will and the right to purchase
The 2012 Will granted Susan with a life interest in the Pickering Property (or until she remarried or cohabited).[4]
The 2012 Will then afforded the Respondent with the first opportunity to purchase the Pickering Property at “fair market value”. Should the Respondent not, “exercise his right to purchase the said property within thirty (30) days of receiving notice that the property is available for purchase, he shall be deemed to have waived his rights”.[5]
To the extent the Respondent waived his right to purchase, the Applicant was then afforded the second right to purchase the Pickering Property at fair market value. Failing that, the Deceased’s stepson, Michael, would have the third option.[6]
If all three optionees declined to exercise their right to purchase the Pickering Property, the 2012 Will dictated that it be sold on the open market.[7]
Notice and option to purchase
On November 3, 2022, the Applicant sent an email to the Respondent in which he stated:
I am now giving you notice as per Page 3 Point (e) of the will of Keith Ward that you now have 30 days to exercise your rights to purchase the Property That is currently [held] in the Estate of Keith Ward.[8]
On December 2, 2022, the Respondent replied to the email stating:
I have full intention of buying the property spoken of in the Keith Ward Will […]
There are other issues needing resolution with the Estate and final purchase of the house and lot. This will be brought to your attention in the near future.[9]
The parties were unable to agree on the fair market value of the property or the basis for that valuation. The property continued to form part of the residue of the Estate and was maintained by the Applicant.[10]
In 2024, the Applicant obtained an appraisal of the Pickering Property. It based the value of the property on the fact that the two lots could be conveyed separately. The Applicant’s appraisal established a fair market value for the property of $1.8 million, comprised of $1.3 million for the dwelling lot and $500,000 for the vacant lot.[11]
Legal Issue
The central legal issue for the Honourable Justice McCarthy to address in Ward was whether the Respondent should be permitted to purchase the Pickering Property and if so, for what price.
The Applicant’s position
The Applicant, as Estate Trustee, argued that the Respondent failed to exercise his right to purchase the property at fair market value. In this regard, the Respondent did not:
The Applicant relied on the decision in The Estate of Ingrid Loveman, Deceased,[13] in which the court held that “[a]cting upon a decision to purchase real property equates with executing an Agreement of Purchase and Sale or otherwise committing to enforceable terms by which the property is to be acquired”.[14] In accordance with the successive rights contemplated in the 2012 Will, the Applicant ought now to be permitted to purchase the Pickering Property at the fair market value established in his appraisal.[15]
In the alternative, the Applicant contended that should the Court decide to afford the Respondent an opportunity to purchase the Pickering Property, it should be at fair market value as established in his appraisal.[16]
The Respondent’s position
The Respondent, meanwhile, was of the view that he did provide notice of his intention to purchase the Pickering Property. Accordingly, he should be permitted to do so at the fair market value of the property as it was on the date the property became available for purchase, namely the date of Susan’s death on April 19, 2022.[17]
Governing Legal Principles
Will interpretation
Justice McCarthy highlighted the general approach to the interpretation of wills, as summarised by Justice Brown in Kaptyn Estate, Re:[18]
When a court interprets a person’s will, it seeks to determine the disposition of the property intended by the testator, in other words, to ascertain the testator’s true intention.
[…]
In interpreting a will, a court seeks to ascertain, if possible, the testator’s actual or subjective intent, as opposed to an objective intent presumed by law.
[…]
As I read the authorities, the prevailing approach to will interpretation requires a court to concentrate on the subjective meaning of the words used by a testator in his will. A court should consider the words used in the light of surrounding circumstances and by considering other admissible evidence, and give the words placed in a will the meaning intended by the particular testator.
[…]
As the Court of Appeal observed in Burke (Re) in applying the “armchair rule” a court should put itself in the place of the testator at the time he made his will and concentrate “on the circumstances which then existed, and which might reasonably be expected to influence the testator in a disposition of his property.”
The even-hand rule
The court also considered the governing duties and obligations of an Estate Trustee. The primary duty of an Estate Trustee is to faithfully carry out the testator’s wishes and to administer the estate strictly in accordance with the terms of the will.[19]
Estate trustees are bound by the “even-hand rule”. As such, they must act with impartiality and not favour one beneficiary over others. This is especially present when an individual is both Estate Trustee and a beneficiary. Estate trustees are afforded some discretion in the exercise of their powers, but that discretion must be exercised fairly.[20]
The Estate Trustee’s primary obligation is to carry out the wishes of the testator as set out in their will. And while he has an obligation to honor specific bequests and to treat beneficiaries even-handedly, an Estate Trustee must do so in accordance with the instructions in the will. Departure from the instructions and wording in the will should only be permitted upon receiving directions from court.[21]
Analysis
Did the Respondent exercise his right to purchase the Pickering Property?
The Court found that the Respondent sufficiently exercised their right to purchase the Pickering Property through his email to the Applicant dated December 2, 2022. He did so within 30 days of receiving notice that the property was available for purchase. The Respondent should therefore be afforded the opportunity to purchase the property at fair market value.[22]
In Justice McCarthy’s view, the Deceased’s use of the words “right”, “first opportunity” and “waived his rights” in the 2012 Will demonstrated a settled intention to afford the successive optionees a reasonable and relatively informal option of purchasing the property within a thirty-day window of “receiving notice” that the property was available for purchase.[23]
In this regard, His Honour noted that:
The testator’s scheme does not amount to a sophisticated or complex commercial arrangement. It was meant to be straightforward: if one of his sons wanted to purchase the property, he could elect to do so but would be required to pay a fair price. Other than the order in which the rights could be exercised, there was no express preference or favoritism, and no advantage, discount or bargain available to any of the optionees.[24] (emphasis added)
Accordingly, the Court was not prepared to read language into the 2012 Will that would serve to impose requirements on an optionee to either: (a) submit a formal offer to purchase, (b) provide proof of financing or (c) make a deposit.[25]
When was the Pickering Property available for purchase?
The Court noted that the 2012 Will did not explicitly state when the Pickering Property would be “available for purchase”. The scheme for options to purchase required the life interest of Susan to terminate before the property could devolve into the residue of the Estate. Only then could the property be sold.[26]
Unfortunately, the 2012 Will did not direct how, when, or if at all, the Estate Trustee would be compelled to sell the Pickering Property, make it available for purchase or provide notice to an optionee.[27]
As such, the Court found that the option to purchase must be read in conjunction with the entirety of the 2012 Will, including paragraph 7. There, the Deceased conferred specific powers on the Estate Trustee in relation to selling, disposing, and retention of assets. Moreover, the Estate Trustee is given specific powers to improve and manage the real property. At the same time, the Deceased conferred upon them the ability to exercise his absolute discretion at any time.[28]
Specifically, under sub-paragraph 7(3) of the 2012 Will, the Applicant as Estate Trustee is empowered to, “…hold any of my assets or investments in the form in which they may be at the time of my death for any length of time…”.[29]
Further still, as for real property, under sub-paragraph 7(6) the Applicant is empowered, “…to expend money out of the income or capital or my estate for repairs and improvements, and generally manage the property”.[30]
By appointing the Applicant as Estate Trustee, the Deceased empowered him to administer the Estate in accordance with the directions in the 2012 Will but also within his absolute discretion. Justice McCarthy found it was a reasonable exercise of the Applicant’s absolute discretion to retain the Pickering Property in the Estate until he determined that it was appropriate to sell it at which time it became available for purchase by the optionees or on the open market.[31]
What is the fair market value of the Pickering Property?
The 2012 Will did not provide for how or when fair market value would be determined for the Pickering Property.[32]
In the Court’s view, a proper reading of the 2012 Will is that fair market value could only be determined or agreed upon after the date when the Respondent exercised his right to purchase the property – this was December 2, 2022. Only after receiving that notice from the Respondent was the Applicant as Estate Trustee compelled to establish fair market value with a view to complying with the terms of the trust and carrying out the conveyance.[33]
Disposition
In summary, Justice McCarthy made the following Orders:
Concluding Comments
The decision in Ward is indicative of how the Court engages in an interpretation of a Last Will and Testament. Moreover, that when a Will gives a right to purchase, it must be interpreted within the context of the whole document and with respect to the relationship of the relevant parties. In this regard, the Court in Ward noted the Deceased’s familial relationship with the Applicant and the Respondent and that the right to purchase under the 2012 Will was not intended to be a complex, or sophisticated commercial arrangement.
—
[1] Ward v. Ward, 2026 ONSC 824 (“Ward”).
[2] Ward at paras 1 – 3.
[3] Ward at paras 1 and 7.
[4] Ward at para 7.
[5] Ibid.
[6] Ibid.
[7] Ibid.
[8] Ward at para 17.
[9] Ward at para 18.
[10] Ward at para 19.
[11] Ward at para 20.
[12] Ward at para 21.
[13] The Estate of Ingrid Loveman, Deceased, 2016 ONSC 2687.
[14] Ibid. at para 27.
[15] Ward at para 22.
[16] Ward at para 23.
[17] Ward at para 24.
[18] Kaptyn Estate, Re, 2010 ONSC 4293, 102 O.R. (3d) 1, at paras. 30-35.
[19] Eaman v. Banford, 2025 ONSC 4712, at para. 15.
[20] In the Estate of Norma Baer, (deceased), 2014 ONSC 4468, at para. 18.
[21] Ward at para 29.
[22] Ward at para 36.
[23] Ward at para 30.
[24] Ward at para 33.
[25] Ward at para 34.
[26] Ward at para 37.
[27] Ward at para 38.
[28] Ward at para 41.
[29] Ward at paras 42 and 43. (emphasis added)
[30] Ward at para 43.
[31] Ward at para 44.
[32] Ward at paras 51 and 52.
[33] Ward at para 55.
[34] Ward at para 66.
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