Potentially Repugnant Clauses In Will
1. Introduction
Sometimes a will contains two clauses that could be considered to be repugnant to each other. If that is indeed the case, the court will typically hold that the second is repugnant to the first and cannot take effect. Older cases have often reached this conclusion. However, under the modern approach to will interpretation the court must consider the whole will and may find that the two clauses, properly interpreted, are not repugnant. The issue arose in the recent case, McCubbin v McCubbin.[1] The case also reminds us that direct evidence of the testator’s intention is not normally admissible.
2. Facts
Colin McCubbin (‘Colin’) married the applicant Louise McCubbin (‘Louise’) in 2009. They lived together at a house in Peterborough (the ‘Residence’) until Colin died in 2021. In 2015 Colin executed a handwritten holographic will. The respondents to the application were Colin’s two daughters from his first marriage, Julie and Nicola. Colin’s first wife died in 2001. The parties agreed that the will was valid, but they disagreed about the meaning of the following two clauses in the will:
MY WISHES IN THE EVENT OF MY DEATH: LOUISE MCCUBBIN (SPOUSE) SHALL ASSUME OWNERSHIP OF THE FAMILY HOME AND CONTENTS AT 19 MCNAB AVENUE.
IN THE EVENT OF LOUISE’S DEATH, JULIE MCCUBBIN (DAUGHTER) AND NICOLA MCGOEY (DAUGHTER) SHALL UPON THE SALE OF THE AFORESAID RESIDENCE, RECEIVE EQUAL SHARES IN ANY EQUITY REMAINING AFTER ALL OUTSTANDING DEBTS ARE PAID.
Louise argued that the first clause granted her full ownership of the Residence and that the second clause constituted a gift over that only applied if she died before Colin. The daughters argued that the first clause gave Louise a life interest in the Residue with a gift over in the amount equal to the net proceeds of sale of the residence when Louise died.
Colin made the will shortly before quadruple bypass surgery.
3. Analysis and Judgment
Justice Mathai began his analysis by reviewing the modern approach to interpreting wills. That approach requires the judge to occupy the position of the testator at the time he made his will and take into account the circumstances that existed at that time and which would undoubtedly have influenced him in disposing of his property. A common term for that process is that the judge should occupy the testator’s armchair. His Honour cited a number of authorities that have endorsed the process.[2]
Louise argued that the court can only consider extrinsic evidence if the will is ambiguous, but Justice Mathai rightly rejected the argument because it was based on earlier jurisprudence overruled by the cases mentioned.
The affidavits of Nicola and her husband Mr Lang attested to different kinds of evidence. Justice Mathai rightly rejected evidence about Colin’s statements regarding his intentions about the residence because they constituted direct evidence of the testator’s intention. He also rejected evidence about the family members’ beliefs about what Colin intended to happen to the residence. His Honour cited further cases and other authorities in support of the point that direct evidence of the testator’s intention is generally inadmissible. He mentioned two exceptions to this rule. The first is equivocation when words in the will are equally applicable to two or more persons or things. The second is when the will contains a drafting error that should be rectified and the court can consider evidence from the drafting solicitor about the testator’s instructions. On the other hand indirect evidence of the circumstances at the time the will was made and contained in the affidavits of Nicola and Mr Lang was admissible.
Justice Mathai then reviewed the jurisprudence on the rule of repugnancy and considered early cases, such as Re Walker,[3] which typically held that when a will left an absolute gift to one person but followed it by a gift over to a second person, the latter is repugnant to the first and is void. However, more modern jurisprudence applies the principle that the court should give effect to all parts of the will if that is possible. An example of the modern approach is Re Shamas.[4] In that case the testator gave ‘all I belong to my wife’ but went on to say that she should have it until the last of the children reached age 21. And he added that if his wife should marry again, she should have a share like each of the children, but ‘if not, she will keep the whole thing and see that every child gets his share when she dies’. McKay JA on behalf of the Court of Appeal held that this meant that the testator gave a life estate to his wife. He went on to point out that in the older cases the court applied common law rules of repugnancy that apply to property law and held that those rules do not apply when the court interprets a will. Justice Mathai also referred to other, similar, modern cases. But he went on to note that if two clauses in a will cannot be reconciled, the repugnancy rule has to be applied.[5]
Neither party argued that the clauses were inconsistent. Justice Mathai accepted the argument of Louise that the second clause in the will operates only if Lousie died before Colin. In reaching that conclusion, he focused on the phrase ‘assume ownership’ and held that the clear effect of that phrase was to give Louise ownership of the Residence. Thus, he rejected the argument of the respondents who argued that the first clause gave Louise only a life interest. He noted that while Colin prepared the will just before his bypass surgery, that did not mean that he did not consider the possibility that he might outlive Louise. Thus, he truly meant that Louise should, ‘assume ownership’ of the residence.
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[1] 2026 ONSC 2079.
[2] Including Re Burke, [1960] OR 26 (CA), 1959 CarswellOnt 98 para 30; Dice v Dice Estate, 2012 ONCA 468, para 36; Trezzi v Trezzi, 2019 ONCS 978 para 14; Ross v Canada Trust Company 2021 ONCA 161 para 36; Jonas v Jonas 2022 ONCA 845 para 13.
[3] (1925), 56 OLR 517 (CA).
[4] [1967], 2 OR 275.
[5] Citing Re Paithouski (1978), 18 OR 2d 385 (CA).
Written by: Albert Oosterhoff
Posted on: August 27, 2026
Categories: Commentary, WEL Newsletter
1. Introduction
Sometimes a will contains two clauses that could be considered to be repugnant to each other. If that is indeed the case, the court will typically hold that the second is repugnant to the first and cannot take effect. Older cases have often reached this conclusion. However, under the modern approach to will interpretation the court must consider the whole will and may find that the two clauses, properly interpreted, are not repugnant. The issue arose in the recent case, McCubbin v McCubbin.[1] The case also reminds us that direct evidence of the testator’s intention is not normally admissible.
2. Facts
Colin McCubbin (‘Colin’) married the applicant Louise McCubbin (‘Louise’) in 2009. They lived together at a house in Peterborough (the ‘Residence’) until Colin died in 2021. In 2015 Colin executed a handwritten holographic will. The respondents to the application were Colin’s two daughters from his first marriage, Julie and Nicola. Colin’s first wife died in 2001. The parties agreed that the will was valid, but they disagreed about the meaning of the following two clauses in the will:
MY WISHES IN THE EVENT OF MY DEATH: LOUISE MCCUBBIN (SPOUSE) SHALL ASSUME OWNERSHIP OF THE FAMILY HOME AND CONTENTS AT 19 MCNAB AVENUE.
IN THE EVENT OF LOUISE’S DEATH, JULIE MCCUBBIN (DAUGHTER) AND NICOLA MCGOEY (DAUGHTER) SHALL UPON THE SALE OF THE AFORESAID RESIDENCE, RECEIVE EQUAL SHARES IN ANY EQUITY REMAINING AFTER ALL OUTSTANDING DEBTS ARE PAID.
Louise argued that the first clause granted her full ownership of the Residence and that the second clause constituted a gift over that only applied if she died before Colin. The daughters argued that the first clause gave Louise a life interest in the Residue with a gift over in the amount equal to the net proceeds of sale of the residence when Louise died.
Colin made the will shortly before quadruple bypass surgery.
3. Analysis and Judgment
Justice Mathai began his analysis by reviewing the modern approach to interpreting wills. That approach requires the judge to occupy the position of the testator at the time he made his will and take into account the circumstances that existed at that time and which would undoubtedly have influenced him in disposing of his property. A common term for that process is that the judge should occupy the testator’s armchair. His Honour cited a number of authorities that have endorsed the process.[2]
Louise argued that the court can only consider extrinsic evidence if the will is ambiguous, but Justice Mathai rightly rejected the argument because it was based on earlier jurisprudence overruled by the cases mentioned.
The affidavits of Nicola and her husband Mr Lang attested to different kinds of evidence. Justice Mathai rightly rejected evidence about Colin’s statements regarding his intentions about the residence because they constituted direct evidence of the testator’s intention. He also rejected evidence about the family members’ beliefs about what Colin intended to happen to the residence. His Honour cited further cases and other authorities in support of the point that direct evidence of the testator’s intention is generally inadmissible. He mentioned two exceptions to this rule. The first is equivocation when words in the will are equally applicable to two or more persons or things. The second is when the will contains a drafting error that should be rectified and the court can consider evidence from the drafting solicitor about the testator’s instructions. On the other hand indirect evidence of the circumstances at the time the will was made and contained in the affidavits of Nicola and Mr Lang was admissible.
Justice Mathai then reviewed the jurisprudence on the rule of repugnancy and considered early cases, such as Re Walker,[3] which typically held that when a will left an absolute gift to one person but followed it by a gift over to a second person, the latter is repugnant to the first and is void. However, more modern jurisprudence applies the principle that the court should give effect to all parts of the will if that is possible. An example of the modern approach is Re Shamas.[4] In that case the testator gave ‘all I belong to my wife’ but went on to say that she should have it until the last of the children reached age 21. And he added that if his wife should marry again, she should have a share like each of the children, but ‘if not, she will keep the whole thing and see that every child gets his share when she dies’. McKay JA on behalf of the Court of Appeal held that this meant that the testator gave a life estate to his wife. He went on to point out that in the older cases the court applied common law rules of repugnancy that apply to property law and held that those rules do not apply when the court interprets a will. Justice Mathai also referred to other, similar, modern cases. But he went on to note that if two clauses in a will cannot be reconciled, the repugnancy rule has to be applied.[5]
Neither party argued that the clauses were inconsistent. Justice Mathai accepted the argument of Louise that the second clause in the will operates only if Lousie died before Colin. In reaching that conclusion, he focused on the phrase ‘assume ownership’ and held that the clear effect of that phrase was to give Louise ownership of the Residence. Thus, he rejected the argument of the respondents who argued that the first clause gave Louise only a life interest. He noted that while Colin prepared the will just before his bypass surgery, that did not mean that he did not consider the possibility that he might outlive Louise. Thus, he truly meant that Louise should, ‘assume ownership’ of the residence.
—
[1] 2026 ONSC 2079.
[2] Including Re Burke, [1960] OR 26 (CA), 1959 CarswellOnt 98 para 30; Dice v Dice Estate, 2012 ONCA 468, para 36; Trezzi v Trezzi, 2019 ONCS 978 para 14; Ross v Canada Trust Company 2021 ONCA 161 para 36; Jonas v Jonas 2022 ONCA 845 para 13.
[3] (1925), 56 OLR 517 (CA).
[4] [1967], 2 OR 275.
[5] Citing Re Paithouski (1978), 18 OR 2d 385 (CA).
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