Be Clear With Your Will

Courts have a solemn duty to fulfill the intentions expressed by a deceased person (testator) through the words in their will. Judges will therefore look at the will very closely to understand what a will says. If they cannot understand what the testator wanted, Courts may have no choice but to proceed as if the confusing words or clauses did not exist (they cannot rewrite the will themselves). This means it is very important to choose words very carefully in a will and express ideas extremely clearly. We recommend hiring a lawyer to help you do this.

The way wills are interpreted is affected by both judge-made law (the common law) and Alberta’s Wills and Succession Act (WSA). The WSA requires a Court to read a will as if the testator made it directly before they died. This means, where a will references people, circumstances, relationships or property that no longer exist when making a gift (disposition), the beneficiary of that disposition likely will not receive anything. The WSA allows the judge to reference circumstances surrounding the testator to help interpret the testator’s words.

When reading a will, a Court considers it as a whole to determine what the testator intended and will try to make every word used have meaning. Where a more general word must be restricted to give meaning to more specific words, a judge will restrict it. Where two gifts as literally written cannot both be made, the Court may attempt to interpret the will to avoid those inconsistencies. A judge will presume many things to aid them in interpreting a will, though they may deviate from these presumptions if the testator clearly had a different intention.

Among other things, the Court will presume the testator:

• Intended identical words will have identical meanings throughout the will,
• Intended words to have their ordinary meaning,
• Intended to follow the law (where the will is ambiguous and one interpretation is lawful and the other is not lawful),
• Intended to benefit their next of kin over others and benefit equal next of kin equally,
• Did not intend to leave some property without any assigned beneficiary (intestacy), and
• Did not intend any unjust or irrational consequences from their dispositions.