Estate Litigation & Wills – Problems if Provisions are Unclear

A Will that contains unclear provisions may be found to be invalid or the particular gifts that are the subject of the unclear provisions may fail. People attempting to write their own Wills may be unaware that the Will is unclear. However, there may be more than one possible interpretation that the Will-maker did not anticipate which may make the provision seem unclear.

If a gift is unclear, a Court may be asked to interpret the Will to determine the Will-maker’s true intention. This will result in significant legal expenses for the Estate and the Court may not be able to determine the Will-maker’s true intent. An unclear Will may result in an intestacy (i.e., when a person dies without having a Will) which, in turn, could result in an unintended person receiving a gift or benefit by virtue of the default provisions of the British Columbia Wills, Estate, and Succession Act (WESA).

“Fixing” Ambiguities in a Will

Just because a Will contains an unclear provision, does not necessarily mean that the Will will be found to be invalid or that the gift containing the unclear provision must fail. Under WESA, there are provisions that can cure certain errors contained in a Will. However, these provisions cannot fix a Will where the Will-maker did not have the required mental capacity or the Will-maker was unduly influenced when making the Will.

Under WESA, a Will that is not in a typically acceptable form may be found to be valid if the Court determines that the Will represents the intentions of the deceased person. For example, the Court may consider whether a journal/diary entry represents the testamentary intention of the deceased.

Alternatively, a Court may also be able to fix an error in a Will if it appears that there is uncertainty because of a simple mistake made by the Will-maker or the person who drafted the Will or because the person who drafted the Will misunderstood the Will-maker’s intention. In these circumstances, the court may choose to look to evidence of the Will-maker’s intention to determine what his or her true intention was regarding the unclear provision. An application to fix an error contained in a Will must generally be made within 180 days of probate being granted.