Executors often find themselves unsure of how to carry out the
terms of a will. This can result from a lack of clarity in the
wording of the will, as described in our article
How Does the Court Interpret An Unclear Will? in this issue of
Your Estate Matters, or from a testator including terms in
the Will that are contrary to accepted practice. In the recent B.C.
Supreme Court case of Ketcham v. Walton, the executor asked the
Court whether it was proper for him to carry out the terms of the
Will that instructed the executor to actively oppose all claims
made by the deceased's children to vary the will under the
Wills Variation Act.
Generally speaking, when a wills variation claim is brought
against an estate, the executor's role in responding to the
claim should be limited. The executor's role is to carry out
the administration of the estate pursuant to its terms, whether
those are the terms as originally set out in the will or the terms
imposed by a court under the Wills Variation Act.
Therefore, the executor should take no position as to adequacy of
the gifts made under the will and must remain impartial between
competing beneficiaries or potential beneficiaries. In a trial of a
wills variation claim, the executor will usually attend only at the
outset to present the will and any relevant memoranda to the Court,
and to set out the assets and liabilities of the Estate. In most
cases the executor will then be excused by the Court from attending
the remainder of the trial.
In the Ketcham case, the deceased excluded his children
under his will. In the will, the deceased also specifically
instructed the executor to actively oppose any variation claim made
by his children and, additionally, to use the assets of the estate
to defend against any claims the children might bring. In fact, the
will went so far as to authorize the executor to deplete the estate
in the defence of the claim, and to undertake as "many appeals
as necessary to ensure that the Testator's intentions are
Given that the instructions set out in the will were clearly
contrary to the usual role of the executor in addressing a wills
variation claim, the executor quite properly sought directions from
the Court as to whether or not he should take this unusual position
of vigorously defending the wills variation claim. The Court
discussed the importance of the impartial role of the executor, and
noted that the terms in this will amounted to an "in
terrorem" clause (a clause that attempts to revoke a gift
under a will if the beneficiary brings a claim for a greater share
of the estate). The Court held that because such terms are contrary
to public policy, the terms were of no force or effect, and that
the executor was to play his usual neutral role in the
This case is a reminder of the Court's role in protecting
standards imposed by our society, and not letting the testator
directly undermine the Wills Variation Act and its
effects. A person making a will and wanting to leave a lesser (or
no) share to a potential wills variation claimant may set out in
the will or a memorandum his reasons for doing so. However, he
cannot leave his executor in the position of having to actively
defend a wills variation claim.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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A discussion on a recent decision by the Ontario Court which demonstrates how, in interpreting an unclear will, a court may consider evidence about the character and experience of the deceased and the circumstances in which the will was prepared.