Court of Appeal Upholds Importance of Intention When Interpreting a Will
In Kirst Estate (Re), 2022 ABCA 93 the Alberta Court of Appeal upheld a case management justice’s order for a testator’s son, Whitehorn, who had been residing in the testator’s home for 9 years after the testator’s death, vacate the home, and the home be put up for sale.
The testator died and left a holographic will. In the will, he directed that his son could live in the testator’s home for “a while” to be determined by Whitehorn’s siblings. Once Whitehorn vacated the home, the testator’s home was to be left to his surviving children. The testator had died in 2010, and in 2019, Whitehorn wished to continue living in the home.
At issue was what the testator intended by the words “a while” when he said his son could continue to reside in the home and whether 9 years was sufficient to find the time frame had passed and an order for the son to vacate the testator’s home would be appropriate.
The Alberta Court of Appeal reviewed s. 26 of the Wills and Succession Act, SA 2010, c W-12.2 and that a cardinal rule of law is a will must be interpreted “in a manner that gives effect to the intent of the testator”.
In a previous decision, the trial judge had found that the testator intended Whitehorn live in the house for a reasonable time after his death by use of the phrase “a while.”
The Alberta Court of Appeal commented that it was time the dispute over the estate end and upheld the lower Courts decision that Whitehorn vacate the home.
The deceased had died in 2010, and the family home was the largest asset within the estate. By 2022, it was time for the estate to be wound up and distributed amongst beneficiaries.
The Alberta Court of Appeal held the decision for Whitehorn to vacate the house was fair and equitable, because it was what the testator intended.
This case provides a brief overview of basic principles in will interpretation. If you have questions regarding the proper interpretation of a will, contact one of the estate litigation lawyers at Kantor LLP, we are happy to be of assistance.