Court of Appeal Decision of the Week

“Home” is Where the Heart Is (and the Motorcycles Too): ABCA Provides How-To Guide for Interpreting Wills

Case: Hicklin Estate v. Hicklin, 2019 ABCA 136 (CanLII)

Keywords: Wills; “Home”; Standard of Review; Extrinsic Evidence

Synopsis:

As succinctly stated by the Court of Appeal, “[t]his is a wills case”. About one word – “home”. The will declares an intention to leave Mr. Hicklin’s “home” to his daughters and the “residue of my Estate” to his brother. Question: what does it mean to leave one’s “home” to one’s daughters?

The Court of Queen’s Bench concludes the word “home” includes:

  • Hicklin’s four motorcycles;
  • his motorcycle trailer;
  • his truck and other personal property found in the garage; and
  • all the personal property found in the testator’s residence.

“Home” means the residence, the attached garage, and the land on which these structures are located. In this case, however, it also refers to any items that contributed to the testator’s enjoyment of his residence. The Court of Appeal agrees that the testator intended “home” to have a broad meaning; finding both the text of the will and extrinsic evidence support this conclusion.

Importance:

The Court of Appeal has provided a set of four guiding principles for future courts tasked with the interpretation of a will. (See paras. 47-51). For the Court of Appeal, the first fundamental principle governing the interpretation of wills is to give effect to the testator’s intention, consistent with s. 26 of the Wills and Succession Act, SA 2010, c W-12.2. For the Court of Appeal, this is a subjective and not an objective undertaking.

Second, the Court of Appeal recommends adopting the “prudent measure” of reading the entire will in order to grasp the structure of the instrument and reveal plausible meanings associated with any contested terms. (See paras. 58-61).

Third, citing a variety of cases and authorities (including A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 70 (2012)), the Court of Appeal affirmed the principle that a Court must assume the testator intended to give words in a will their “ordinary meaning”. (See paras. 62-65). There is a presumption that the testator has conveyed his/her intention using the ordinary meaning of language. In other words, to demonstrate a contrary intention, it is necessary to satisfy the court, on a balance of probabilities, that the testator meant something else. (See para. 12).

Finally, the Court of Appeal determined that, in the circumstances of the present case (i.e. where there are two or more plausible “ordinary meanings”), the Court must select the one meaning that “best promotes the testator’s intention”. Significantly, the Court of Appeal stated that, though there is no “hard and fast rule” in making that determination, the Court may rely on extrinsic evidence and context. (See paras. 13-14; 89).

Notably, the Court of Appeal held that, pursuant to s. 26 of the Wills and Succession Act, there is no precondition to the admissibility of extrinsic evidence to assist with interpretation:

The latter approach is correct – extrinsic evidence of the kind described in s. 26 of the Wills and Succession Act is admissible. Its admissibility is not dependent on a finding that a word is capable of more than one meaning or that an ambiguity exists. This approach is theoretically sound and inherently practical and it best promotes the object of s. 26 of the Wills and Succession Act. (See para. 76).

With respect to the applicable standard of review, the Court of Appeal notes that a Court of Appeal may set aside the meaning provided by a Court of Queen’s Bench in two circumstances:

  • where the Court misapplies “the governing principles” of interpretation; or
  • where it has committed a palpable and overriding error in the analysis, defined as “an obvious error in the trial decision that is determinative of the outcome of the case”. (See paras. 90-104).

In this case, the Court of Appeal found no reversible errors in the Court of Queen’s Bench decision. While there may have been alternative, plausible meanings of “home”, there was ample evidence to support the conclusion that the testator intended the broader (“largest possible” from the perspective of the Appellant) meaning of home – which is to say, a definition which refers to the dwelling-place plus contents of the house and property. (See paras. 109-125; 136).

In support of these findings, the Court noted there was extrinsic evidence the testator gave his daughters generous gifts (including $20,000 and “expensive motorcycles”). For the Court of Appeal, “It is not unreasonable to conclude that a father who makes generous gifts to his daughters after he made his will intended to provide for them in his will in an equally generous manner.” (See paras. 128-135). As such, the Court of Appeal concluded the “incontrovertible facts” of this case supported the Court of Queen’s Bench decision.

We note that the Court of Appeal also included interesting hypotheticals (which heavily feature vintage Rolls-Royce automobiles) in order to demonstrate the need to examine extrinsic evidence. (See paras. 70-72; 82-88). For example:

Suppose B collected classic automobiles. He had five vintage Rolls-Royces that were built before 1966, five modern Rolls-Royces that were built after BMW acquired the right to manufacture and sell Rolls-Royces – around 1998 – and ten pre-1939 Mercedes Benz motor cars. All the vintage Rolls-Royces were made in England. Ninety percent of the components were manufactured in England. All the classic Mercedes Benzes were made in Germany with only German-made components. Suppose B’s will states that son C is to have the English vehicles and son D is to inherit the German vehicles. After B’s death, C and D agree on who inherits the vintage Rolls-Royces and Mercedes Benz motor cars. But they cannot agree on who inherits the five modern Rolls-Royces. C argues that he should inherit them because they were built in Goodwood, England and the automobile industry generally recognizes them as an English car. D claims that the new Rolls-Royces are English in name only. BMW builds them. BMW is a German enterprise. In addition, the modern Rolls-Royce’s engine and many other critical parts are BMW products.

Both C and D advance plausible arguments about what are the markers of an English vehicle. Their father may well have been influenced by these considerations when describing his vehicles as either “English” or “German”.

C presents affidavits from his father’s mechanic and his father’s friends to the effect that B always referred to the modern Rolls-Royces as English cars. Given that the judge’s task is to ascertain the testator’s intention this is very important information. (See paras. 70-72).

Counsel for the Appellant: Michael Aasen (McLennan Ross LLP, Calgary)

Counsel for the Respondent: Christina Laughlin (Thompson Laughlin, Calgary)

Discuss on CanLii Connects

Posted: Wednesday, April 17, 2019