Legal costs mount as court interprets ambiguous will

In the worst cases, feuding family members will go to war in court, seizing on words and phrases in a loved one’s will that are open to interpretation, in order to raise doubts about whether the estate was distributed to the right beneficiaries. 

In less contentious – but just as frustrating – cases, judges are often called on by parties to interpret clauses or rectify mistakes that make it impossible to know for sure what the testator intended. 

Every day, the case list at Ontario’s Superior Court fills up with cases of both kinds, including one recent matter, in which a judge was asked to rule on whether a deceased woman’s “outline of will” could be accepted for probate.

It remains to be seen which end of the spectrum this case will fall on, but with a $1.8-million estate at issue, it wouldn’t be a surprise to see a little more acrimony among the parties before it is settled.

Either way, the main result will be a lot of wasted time and money that could have been avoided with a little more clarity. The saddest part is that nobody really wins in the end, since the costs associated with litigation will typically be borne by the estate itself, eating away the very assets the parties are hoping to inherit. 

The will outline in this case was written in point form, but was signed by the testator and witnessed by two other people, providing for three lump-sum gifts from the estate, plus the outline of a testamentary trust. 

The man named as “trustee” by the document applied to the court for appointment as the estate trustee. And while the judge hearing the matter found it was possible for an outline of a will to meet the requirements of a will under the province’s Succession Law Reform Act, he decided that there was not enough evidence at this stage to resolve the numerous ambiguities before him. 

For instance, it was not clear whether the applicant was intended to be named trustee of the testamentary trust, executor, or both. In addition, the lack of any active language regarding the revocation of previous wills left the judge in doubt about whether the outline was intended to replace previous versions. 

“I would require additional evidence in order to be confident that the ‘outline’ was intended to be a will and intended to revoke earlier wills when it was signed by the deceased,” the judge wrote, adjourning the matter until the new evidence can be brought before him. 

If you hope to keep your own estate out of the courts, your best bet is to hire an experienced trusts and estates lawyer who can help you ensure the language of the will accurately reflects your wishes regarding gifts, guardianship, funeral preferences and much more, all while minimizing the tax burden on the estate. 

The more complicated and valuable your assets are, the more essential it is to obtain sound legal advice before finalizing an estate plan.

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