How Outside Evidence Might be Used to Interpret a Will

Wills are complex, and properly interpreting the wishes of a will-maker can, in some cases, be a difficult and confusing task. In a poorly drafted Will, clauses can be vague, ambiguous, or, even worse, inconsistent with other clauses within the Will.

The question then arises: how can the executor correctly discern how the will-maker wanted their estate to be dealt with?

Be aware that extraneous documents may be used as evidence to resolve ambiguities within the Will, whether or not the will-maker actually intended for those outside documents to be part of the estate plan.

In Legal News

Zaleschuk Estate v S.C., 2023 BCSC 523 is a recent case in which the court was asked to reconcile inconsistent clauses within the Will. Victor Zaleschuk owned a residential property in BC when he died. He included a clause in his Will to gift the BC property to his wife, Wendy. However, the Will also included a clause stating that if Wendy then later sold the property, Wendy would pay a $150,000 cash gift to Victor’s son.

These two gifts were inconsistent with each other, because Victor had completely given away the property to his wife; he could not take a portion of that gift away by also bequeathing part of the sale proceeds to his son, unless he had actually imposed a trust condition on Wendy to share the sale proceeds, which he had not expressly done. Victor had created two gifts that legally could not actually exist at the same time.

Both Wendy and Victor’s son agreed that the Will was inconsistent, but they differed on how to deal with the inconsistency. Wendy argued that the house was a complete gift, meaning it could not come with “strings attached” that would force her to give the son some of the sale proceeds later. The son disagreed, pointing to a letter from Victor to his American lawyer, made the same day the Will was signed, in which Victor said he was leaving $150,000 to his son if the house was sold.

The Result

Even though this letter was meant to ask for advice from his American lawyer, and was not a finalized document, the Court decided that it could use the letter to interpret the Will. Based on the contents of that letter, the Court decided that Victor had intended that his son would receive cash if Wendy ever sold the property. Therefore, the Court fixed the Will by imposing a trust condition on Wendy, requiring her to pay the cash gift upon any future sale.

This case emphasizes that careful drafting, precise wording and knowledge of the law is essential to a well-written Will. If you have questions, contact our Wills & Estates Team – we’re here to help.