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<< back to all ArticlesA Cautionary Tale in Will Interpretation
Recent Alberta Court of Appeal Decision a Reminder of Important Principles in Interpreting Wills
When someone passes away, how do we know what they really intended in their Will?
Alberta’s Wills and Succession Act tells us that Wills must be interpreted in a way that gives effect to the testator’s intentions. However, the law also recognizes that interpreting a Will, especially after the testator has passed, can be complicated. The Alberta Court of Appeal’s recent decision in Ferguson Estate (Re), 2025 ABCA 94 illustrates some of the particular challenges that can arise in attempting to interpret Wills.
What Does the Law Say?
Under the Wills and Succession Act, courts can consider various types of evidence when interpreting a Will, including evidence regarding:
- How specific words or phrases used in the Will are normally understood (either in everyday or technical terms);
- The meaning of provisions of the Will in the context of the testator’s personal circumstances at the time the Will was made; and
- Any direct evidence of the testator’s intentions regarding what is mentioned in the Will.
Importantly, unless the Court finds a contrary intention, a Will is interpreted as if it had been made immediately before the testator’s death. While the legislation gives direction, determining what someone truly meant can still be difficult, especially when there are conflicting claims or unclear language.
The Ferguson Estate Case
The key issue in Ferguson Estate was whether the testator had gifted her company, Oro Brazos Minerals, to just one of her children, or whether it was her intention for all four of her children to share in the benefits and income from the corporation.
The daughter who appealed the decision (the Appellant) argued that her mother had gifted her all the shares in the corporation back in 2010. But there were no supporting documents from that time, such as share certificates or deeds of gift, to verify her claim.
In July 2014, the mother made a Will stating that her four children should equally share in the royalty revenues from oil wells owned by the corporation.
That raised a significant question: Had the shares actually been given to one daughter back in 2010? Or was that daughter simply holding them in trust, meaning the mother had never really given up her ownership, and the shares should form part of her estate?
This concept, where the property is presumed to be held in trust if it was not truly gifted, is known as a resulting trust and can often arise in estate matters, including with more common matters like joint bank accounts.
What the Courts Decided
At the first level, the Justice found that the mother had not gifted the shares in 2010. As a result, the daughter was holding them in trust for the estate. The Justice then interpreted the Will to determine how the shares (and their proceeds) should be distributed.
On appeal, the daughter argued that the Chambers Justice erred in interpreting both the evidence and the Will itself. The Court of Appeal dismissed the appeal, finding no error in the decision of the Chambers Justice.
The Court of Appeal confirmed several important principles about how Wills should be interpreted, echoing its previous decision in Hicklin Estate v Hicklin, 2019 ABCA 136. These include:
- Courts must read the Will as a whole and assume that words have their ordinary meaning unless there’s a compelling reason not to do so.
- Extrinsic evidence can be used to ascertain the testator’s intentions.
- The context surrounding the Will can provide valuable insight into the testator’s intentions.
- A party claiming that a testator meant something different than the plain meaning of the words in the Will must prove it on a balance of probabilities.
- If there are multiple plausible interpretations of the Will, the one that best promotes the testator’s intentions should be adopted.
The Court emphasized that the ultimate goal is to give effect to the subjective intention of the testator, that is, what they truly meant at the time. The Court also acknowledged that courts may draw common-sense inferences when deciding what the testator likely intended.
Ultimately, the Court concluded that the mother intended all four of her children to benefit from the corporation’s royalties.
Why This Case Matters
The Ferguson Estate decision highlights the complexity of interpreting Wills and determining someone’s intentions after they’re gone. Without clear language or supporting documentation, even seemingly straightforward wishes can become the subject of lengthy litigation.
The decision is a reminder of how important it is to carefully plan, draft, and update your Will with the help of an experienced advisor. Doing so can prevent misunderstandings and disputes, and ensure that your wishes are truly fulfilled.
For assistance with estate planning, estate administration, and estate litigation, contact our Wills, Estates & Trusts Team.
This post is meant to provide information only and is not intended to provide legal advice. Although every effort has been made to provide current and accurate information, changes to the law may cause the information in this post to be outdated.
