Interpreting an Unclear Will: Court Applications in Ontario

Sometimes a will is valid but its wording does not give a clear answer. Two beneficiaries may read the same clause in different ways, and the estate trustee may not want to distribute until the disagreement is settled.

This article explains how that kind of dispute generally reaches the court and what to expect. The exact application and its steps depend on your case, so a lawyer should confirm them.

Unclear wording versus an invalid will

A dispute over what a clause means is not the same as an argument that the will should not stand. Interpretation assumes the will is valid and asks what the words mean.

A challenge to validity is different. The person propounding the will has the legal burden of proving due execution, knowledge and approval, and testamentary capacity. Once due execution is proved, a rebuttable presumption of knowledge, approval and capacity puts an evidential burden on the challengers. If they introduce evidence of suspicious circumstances, the legal burden goes back to the propounder. Undue influence is an exception: the burden stays on the people attacking the will.

There is also a route for documents that were not properly signed. The Superior Court of Justice may order that an improperly executed document is valid as the deceased's will if it is satisfied the document sets out the deceased's testamentary intentions.

What courts will and will not do

Testamentary freedom is limited by legislation and public policy. Courts will void offending testamentary conditions on public policy grounds, but they will not go behind a testator's clear, unconditional choice of beneficiaries.

That matters for interpretation. If the words are genuinely clear, a court is unlikely to rewrite them because the result seems unfair. Likewise, there is no statutory duty on a competent testator to provide in a will for an adult, independent child. Whether a clause is truly unclear is a question for a lawyer to assess against the whole will.

Where the case is heard

In the Toronto Region, the Estates List of the Superior Court of Justice hears estate, trust and capacity matters, including Rule 74 and 75 proceedings. Rule 75.06 gives the court considerable discretion and flexibility to set a process for resolving a contested estate.

Procedures differ by region, so the practice direction for the court where the case will be heard matters. In Toronto, a party seeking an urgent Estates List hearing must complete an Urgent Hearing Request form through the Ontario Courts Public Portal. For motions and applications, parties must file a costs outline through the Portal before the hearing.

Mediation and cost

Rule 75.1.02(1) makes mediation mandatory in certain estates proceedings, including contested passings of accounts, claims against an estate, and proceedings under the Substitute Decisions Act, 1992. Under Rule 75.1, certain lawsuits about estates, trusts and substitute decisions are referred to mandatory mediation unless the court grants an exemption. The Ontario government says the program operates in Toronto, Ottawa and Windsor.

Whether a wording dispute falls within these rules depends on how the proceeding is framed. Where mediation applies, the court's directions order sets the cost of mediation and how it is shared, and parties pay mediators directly.

What to do next

• Get a complete copy of the will and any codicils, and mark the clauses in dispute.
• Write down, in neutral terms, what each beneficiary thinks the clause means.
• Ask the estate trustee to hold off distributing the disputed share while the meaning is sorted out.
• If you have a financial interest, consider Form 74P to ask the court to notify you when someone starts a proceeding involving the estate.
• Speak with a lawyer about whether interpretation, validation or a validity challenge fits your situation.

Frequently asked questions