Interpreting Wills In British Columbia Under the WESA
When the court interprets a will, they are attempting to find the will-maker’s subjective intention by examining the words he or she used. However, when the court is unable to determine the will-maker’s intentions, they will undergo construction, which is the “application of various rules and presumptions that the court may apply if the court is unable to find the will-maker’s intention.” But when are interpretation and construction needed? Klein Lawyers explains.
Wills, Estates and Succession Act: Construction
Division 1 — Meaning of Spouse, Effect of Adoption and Construction of Instruments of the Wills, Estates and Succession Act explains that the construction of instruments is necessary when:
- A provision of the will is meaningless,
- A provision of the testamentary instrument is ambiguous on its face, or in light of the evidence, other than evidence of the will-maker’s intention, demonstrating that the language used in the testamentary instrument is ambiguous having regard to surrounding circumstances, or
- The extrinsic evidence is expressly permitted by this Act.
“Extrinsic evidence” is any evidence apart from the will itself which shows the will-maker’s intent.
In general, construction is required when there is the rectification of a will, (meaning the court determines that the will fails to carry out the will-maker’s intentions) because there is:
- An error in the will arising from an accidental slip or omission,
- A misunderstanding of the will-maker’s instructions, or
- A failure to carry out the will-maker’s instructions (by the administrator).
While the basis of the construction element of the Wills, Estates, and Succession Act is to ensure the intentions and wishes of the will-maker are met, this often comes as a concern for the family as they believe that they truly know the deceased, and the court may not.
However, this court interaction becomes critical when there are issues within the will that impact the adequate provision and maintenance of the descendants. We know how complicated these issues can be, as you are already dealing with the loss of a loved one; but know that having a wills variation lawyer to guide you through the process can make all the difference.
Interpreting Wills Under The WESA: Call Klein Lawyers
When a loved one’s will is in need of interpretation and construction, you may feel overwhelmed. However, this process is meant to protect your loved one’s intentions as well as your rights as the beneficiary.
With all of this in mind, it is important to work with an experienced lawyer who is committed to winning the maintenance and support you deserve.
Contact Klein Lawyers at (604) 874-7171 today for a free, confidential case evaluation. Our wills variation lawyers serve clients throughout British Columbia from offices in Vancouver, Abbotsford, Burnaby, Coquitlam, Langley, and Surrey.