The will makes a gift to the grandchildren: who shares in the gift?
- The court must interpret the will to determine who the testator was referring to.
- In order to answer this question, the court will try to put itself into the “armchair of the testator” and read the will in the context of the things known to the testator.
In one of our cases, Re Mackay Estate, the will provided for distribution of the estate upon the death or remarriage of the testator’s widow and specifically named the deceased’s two daughters and the grandchildren as beneficiaries.
The judge decided that the class of grandchildren was to be determined upon the death or remarriage of the widow. As a general rule, in the case of a gift to a class, the class was to be ascertained at the testator’s death. Although, on the facts, it was unlikely that other grandchildren would be born, the possibility of adoption existed, and there was little practical difficulty in setting aside appropriate funds from the estate residue. Here, it was clearly the intention of the testator that the class not be closed until the death or remarriage of his wife.
In another one of our cases the will gave a gift to the grandchildren. There were 3 that were blood relatives, and 27 more that were step-grandchildren. The court had to determine whether the step-grandchildren were included or not.
The judge decided that they were not included. The starting point is that there is a legal presumption that words like “children” and “grandchildren” refer to blood relatives only. In some cases the words of the will show that this is not what the testator meant, and in those cases the words of the will govern. In other cases the testator’s intention is not clear from the words used in the will. In those cases, the judge tries to put him or herself in the “armchair” of the testator, and considers the facts and circumstances known to the testator when the will was made.
In this case, the judge considered notes in the file of the lawyer who drafted the will. These notes showed that the testator only meant her blood relatives to get the gift. These notes were in harmony with the words used in the will itself, and were consistent with the legal presumption.
Read the case: Lang Estate