On occasion the intentions of a testator as expressed in his or her will are unclear. This may be a result of poor drafting or a change in circumstances following the execution of the will that was not contemplated by, or addressed, in the will. An estate trustee should not administer this unclear will in a manner that he or she believes was intended by the testator. Rather, an estate trustee, or any person with an interest in the estate, may apply to the Superior Court of Justice to have the will construed. In interpreting the will, the objective of the court is to ascertain the actual or subjective intention of the testator respecting the disposition of his or her property. The court of construction must give consideration to the testator's peculiar and unique use of language in the will as well as all of the circumstances surrounding the testator's life, which may have impacted upon the type of disposition actually intended by the testator in the will.
A will interpretation in the Province of Ontario is commenced by application pursuant to Rule 14.03 of the Rules of Civil Procedure. The application is supported by evidence in the form of affidavit. Direct evidence of the testator's intention is generally inadmissible.
Schnurr Kirsh Schnurr Oelbaum Tator LLP lawyers are often called upon to given written legal opinions to estate trustees and to interested beneficiaries as to the possible meaning of provisions of wills and are regularly asked to apply to the court to have a will interpreted where there is disagreement among all parties having an interest in an estate as to its meaning.