By Me Laurent Fournier
It is common for heirs to learn of a loved one’s will only after his or her death. When some of the will’s clauses are ambiguous, it is therefore difficult to obtain the required clarifications to ensure that the wishes of the deceased be respected.
To illustrate this situation, let’s consider the following example:
Jacques and Suzanne have been a couple since 1979 but have never decided to get married. In the early 2000s, Jacques and Suzanne decided to write their last wishes in a notarized will. Jacques bequeaths his primary residence to his common-law spouse, Suzanne.
A few years later, Suzanne decides to leave Jacques and to start a relationship with a childhood friend, Marc. Jacques never changes his will and dies suddenly. Inevitably, Jacques’s heirs might ask themselves:
In such circumstances and considering that inheritance dispute matters can be particularly distressing for relatives, it is important to know the principles that guide the courts in their interpretation of wills.
It is important to clarify that the fact that a result may appear unfair should not be a valid reason for contesting the will, as seen in the example of the distant spouse who would inherit the deceased’s residence, if the deceased had not duly revoked his or her will.
More specifically, it is generally only in the presence of ambiguous testamentary clauses that a Court will be justified in intervening[1]. The intervention in question is not the modification of the will, but rather an interpretation that would make it possible to set aside the ordinary meaning of the terms used when they appear to be inconsistent with the testator’s real intentions.
Moreover, although a will is not a contract, the courts apply the rules of interpretation of contracts governed by the Civil Code of Quebec to determine the testator’s true intention[2].
If some testamentary clauses are ambiguous, the first step of analysis that the courts will take is to evaluate the ambiguous clauses considering the other testamentary clauses. Thus, if the interpretation suggested by one of the parties is inconsistent with the intention that emerges from the will, evaluated in its entirety, the Court should not intervene.
However, if there is any doubt in the Court’s opinion as to the testator’s true intentions, which must be assessed at the time the will is drawn up and not at the time of death, it will be possible for the parties to resort to extrinsic evidence[3].
This extrinsic evidence may be provided by several means, including testimony. In some cases, hearsay will be accepted as evidence of statements maybe by the deceased prior to his or her death.
In all cases, it must be kept in mind that the general principles set out above are intended to assist the courts in their search for the testator’s real intention and not to fix a situation that might appear unjust. Before taking any steps or deciding on the merits of an appeal, it is preferable to seek legal counsel. Our GS team is here for you, do not hesitate to consult us to learn more about your rights.
[1] Blanchette v. Poirier [2013] QCCS 1560.
[2] Nixon v. Pinelli [2000] CanLii 1350 (QC CA)
[3] Verreault v. Grenon [2018] QCCS 4266
This note contains general legal information and should not be used as a substitute for legal advice from a lawyer who will consider your specific needs.
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