Testamentary ambiguity is often the spark that ignites a court battle after the death of a loved one.
Across the province, courthouse case lists are full of feuding relatives who have seized on inaccuracy or vagueness in the deceased’s will to challenge the inheritances left to their fellow beneficiaries.
In families with strained relations, a visit to court may have been inevitable at some point anyway, thanks to years of built-up resentment, sibling rivalries and other destructive family dynamics.
In other, more tragic cases, it’s easy to imagine the potentially peaceful estate administration that could have proceeded without the assistance of a drafting error. Instead, the parties are left to deal with the eye-watering cost of a court action – which typically comes out of the estate itself, eating into the amount due to heirs – that may have been avoided altogether with a little more precision and clarity in the language of the will.
I recently came across one such case, involving two half sisters – born to the same mother by different fathers – in dispute over assets left by their grandmother.
The deceased’s will provided the sisters’ mother with an equal share of the estate in trust, which was then to be distributed to her children equally when she died. According to the decision, the pair had little connection during their childhoods, having grown up largely in different households.
The trouble arose when the sisters’ mother died in 2021, thanks to a standard exclusion clause in the grandmother’s will stating that any reference to “children” in the document “shall not include a person born outside marriage.”
Relying on the clause, the older daughter claimed that she should be the sole beneficiary of the trust, since the younger daughter had been born outside of marriage.
In Ontario, a court may rectify errors in will drafting that stop the testator’s true intentions from being carried out, and the judge in this case was satisfied that the exclusion clause should be deleted because it was included in error.
He found that there was no evidence the grandmother treated any of her own children or grandchildren born to married parents any differently from those born outside of marriage. In addition, the judge wrote that it was clear that she intended to benefit the two half sisters at the heart of the matter equally.
Although the will in this case was drafted by a lawyer, problems with ambiguous language are even more likely when testators decide to go it alone with DIY will kits.
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.
No matter how complicated and valuable your assets are, it is essential to obtain legal advice before finalizing an estate plan.
Disclaimer: The content on this website is provided for general information purposes only and does not constitute legal or other professional advice or an opinion of any kind. Users of this website are advised to seek specific legal advice by contacting members of Laredo Law (or their own legal counsel) regarding any specific legal issues.
