The more detail a testator can put into a will, the better, says Toronto wills and estates lawyer Elinor Shinehoft.
Shinehoft, principal of Shinehoft Law, says a recent decision by Alberta’s Court of Appeal perfectly illustrates the problems that can occur when too little description in a testamentary document opens up the possibility of litigation between beneficiaries.
The more detail a testator can put into a will, the better, says Toronto wills and estates lawyer Elinor Shinehoft.
Shinehoft, principal of Shinehoft Law, says a recent decision by Alberta’s Court of Appeal perfectly illustrates the problems that can occur when too little description in a testamentary document opens up the possibility of litigation between beneficiaries.
The unanimous three-judge panel of the province’s top court upheld a lower court judge’s decision to include personal items on the deceased’s property in the award to his surviving daughters after he bequeathed his “home” to them. That ruling came over the objections of the dead man’s brother, who hoped to inherit the disputed items as the beneficiary of the estate’s residue.
But Shinehoft suspects all the cost, time and emotional energy spent on the court case could have been avoided had the will been transparent in the first place.
“It doesn’t seem like the deceased anticipated any problems with what was written in the will, but if you’re unsure, it’s always better to add a bit of extra detail,” she tells AdvocateDaily.com. “Nothing bad is ever going to come of listing out items that you think might be argued over, or clarifying exactly what is meant by certain language.
“It’s also a good idea to avoid words that can be interpreted in multiple ways,” she adds.
The testator in the Alberta case died in 2014, a decade after signing a will that left his home to his two daughters, with the residue of the estate going to his younger brother and business partner, who was also named executor of the estate.
When a dispute arose as to whether the meaning of “home” should be construed to include the deceased’s personal items, a judge ruled in favour of the daughters, concluding they could inherit four motorcycles, a motorcycle trailer, truck and other objects located in the garage on their father’s property.
The appeal court panel found the lower court judge made no reversible errors in his decision and was within his rights to accept extrinsic evidence from a friend of the deceased, as well as to interpret the word “home” broadly to include personal property that contributes to its enjoyment.
“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,” the appeal court decision reads.
Shinehoft says the case offers a useful overview of the law in the area of will interpretation and extrinsic evidence, but she remains surprised by the drafting lawyer’s work.
According to the decision, the lawyer “drafted the will exactly as instructed,” without asking his client to identify his property or explain what he meant by “home.”
“Nobody deliberately makes a will unclear to cause problems for their heirs, but even describing the address of the property could have made a big difference,” says Shinehoft. She points out that her typical drafting practice is to insert the municipal description of a home into the text of the document, performing a land registry search if necessary to determine the exact nature of the property and its ownership status.
“Then you would usually have a separate section dealing with personal property, which encompasses any other items of value,” she says. “The only time you might not get into a detailed description is if everything is being left to a single person because then there is less room for misunderstanding.”
Shinehoft also advises her clients to consult intended beneficiaries and trustees to inform them of their intentions ahead of their passing.
“If you speak to everyone and make sure they’re all on board, then you can avoid some arguments and misunderstandings when the time comes,” she says. “In this case, it seems like the brother had no idea he would be named as a beneficiary or as executor.”