Beneficiaries don’t always need much of an excuse to argue among themselves after the death of a loved one, but too often, testators give them the pretext they need to fight by including words and phrases that are open to interpretation.
Every day, Ontario’s Superior Court is full of will challenges like these, many of which could have been avoided with a little more precision and clarity in the language of the will.
The saddest part is that nobody really wins in the end, since the sickening expense associated with litigation will typically be borne by the estate itself, eating away the very assets the parties are hoping to inherit.
In one recent case, the children of a deceased man went all the way to Alberta’s Court of Appeal to argue over the meaning of one word in their father’s will: “awhile.”
The father of seven died in 2010, leaving a will that directed his entire estate be shared among his children.
“Whitehorn can live in the house for awhile, to be determined by Him and his brothers + sisters,” read the final sentence of the will.
Almost a decade later, with Whitehorn still in the home, three of his siblings decided he had been there long enough, arguing in court that he should leave. For his part, Whitehorn claimed that his father had given him the right to live in the house indefinitely and that he should be the one to decide when he would go.
However, a case management judge sided with Whitehorn’s siblings, finding that he must vacate the home, and the appeal court agreed:
“The house is the principal asset of the estate and Whitehorn’s interpretation is inconsistent with the testator’s intention which was to leave his estate to all of his children. Accordingly, this appeal is dismissed,” the three-judge panel wrote.
The will in this case was handwritten by the testator himself, which is frequently the case when beneficiaries end up in court fighting over unclear language. But even with the help of do-it-yourself will kits – long a staple at stationers across the country – people sometimes use ambiguous words and phrases that lead to disputes over how the will should be interpreted.
An experienced trusts and estates lawyer can help testators ensure the language of the will accurately reflects their 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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