Will disputes are becoming more and more common and the Courts are becoming less reluctant to weigh in on drafting issues. For example, in Alberta, the Court of Appeal has just reminded us how important it is to use clear and unambiguous wording in a Will. In this case, the definition of “home” was debated and the Court was asked to determine if a testator meant to leave both his real property, and the personal property located within it, to the same beneficiaries. See: Hicklin Estate v Hicklin, 2019 ABCA 136.
In Mr. Hicklin’s Will, he left his “home” to his two daughters in equal shares and transferred the “residue of the estate” to his brother James, who also happened to be the Executor.
Following Mr. Hicklin’s death, there was a will dispute between the daughters and the brother. The daughters claimed that they were entitled to all of their father’s personal property while the brother claimed that they were not.
Mr. Hicklin’s lawyer swore an affidavit saying that the intention was for the “home” to be left to the daughters and “everything else” to the brother, but unfortunately the lawyer did not define what was meant by “home” or personal property.
In contrast, a friend of Mr. Hicklin swore that the intention was for the word ‘home’ to mean all real and personal property.
At trial, relying upon the Wills and Succession Act, the judge held the daughters should inherit the testator’s home and garage, the land to which they were attached, and the personal property located in the home and the garage. Meanwhile, the brother should inherit the “interest in Hicklin Motors, the scrap metal stored at Hicklin Motors and elsewhere, the tax-free savings account, any cash not found in the house or the garage, and any other estate assets not expressly given to the testator’s daughters.”
The Court of Appeal of Alberta upheld the ruling, saying that the trial judge correctly accepted the evidence of the friend as to the testator’s intent, as well as taking the broad definition of the word “home” to include personal property.
According to the Court of Appeal: “There is ample evidence to support the Court’s conclusion that the testator intended ‘home’ to be interpreted broadly. This interpretation is the best match for the testator’s object of financially assisting his daughters after his death.”
It is clear that none of this would have been an issue if the lawyer had provided greater clarity in the Will. In so doing, Will Disputes can be avoided. If you have a concern about a Will or wish to minimize the risk for Will Disputes, we recommend that you have your Wills drafted by a qualified lawyer Wills and Estates Lawyer.
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