On June 27, 2013, the Court of Queen's Bench of Alberta released the decision of the Honourable Justice Sisson in Ryrie v. Ryrie. The application was for Advice and Direction in interpreting a paragraph of the Testator's last Will dated May 25, 2011. At the time the Testator executed the May 2011 Will, he was in his 90s and had speech and vision impairments that made it difficult for the Testator to communicate. The paragraph in question read as follows:

"4. I give all my property, including any property over which I have a power of appointment to my Trustee upon the following trusts:

(a) To divide and distribute the residue of my estate among my children, Brian Martin Ryrie, Lynette Fern Ryrie, Wallace Bruce Ryrie, Lionel Gary Ryrie, Diane B. Howard and Barry David Ryrie, in equal shares, provided that if any child of mind has predeceased me leaving issue alive at my death, then I direct that such issue shall receive in equal shares, per stirpes, that share in my estate to which such deceased child of mine would have been entitled, had he or she survived me."

Prima facie, Clause 4(a) appears to be unambiguous, however, the issue before the Court is created by the fact that in 2003, one of the Testator's children, who is not listed in paragraph 4(a) of the May 2011 Will, predeceased him leaving two children. It is these two grandchildren that were the Applicant's in this application.

The Court directly considered the interpretation of Section 26 and Section 39 of the Wills and Succession Act ("WSA") and their interaction with Section 11 of the Alberta Evidence Act ("EA"). Section 26 of the WSA deals with interpretation and evidence and Section 39 of the WSA deals with rectification. Section 11 of the EA deals with the corroboration of evidence rule in estates. Given the small amount of case law that considers the WSA, the Court held that the Alberta Law Reform Institute ("ALRI") publication, Wills and the Legal Effects of Changed Circumstances, is appropriate evidence of the context, purpose and textual meaning contained in the WSA and will bear considerable weight.

The issues the Court was asked to consider were two fold, first when must a Court look at extrinsic evidence in interpreting the intention of the Testator and secondly, if the Court must look at extrinsic evidence, what does that extrinsic evidence disclose?

The Court held that the WSA is clear in that if external circumstances require or if the intent of the testator is ambiguous, then the Court MUST conduct an investigation into the intent of the testator. The Court held that Clause 4(a) was ambiguous in the circumstances because the Clause was capable of more than one interpretation depending upon how the second half of the paragraph that deals with the disposition to unnamed predeceased children is interpreted to interact with the first half of the paragraph that deals with the disposition to named children.

The Court in examining the evidence placed particular reliance on the drafting solicitor's evidence that it was the Testator's intention for the Applicants to equally share in the share of the Estate that their deceased father (the Testator's son) would have received. The drafting solicitor indicated that she believed that this is what the Will provided for at the time the Testator signed it and only later realized the possibility for ambiguity in the interpretation of Clause 4(a). In reliance upon the drafting solicitor's evidence, the Court used the rectification powers found in Section 39 of WSA to modify the May 2011 Will to make it clear that the Applicants were to receive and share their deceased father's 1/7 share of the residue.

It is interesting to note that the ability of the Court to add or delete words in order to rectify a will is a discretionary power under section 39 of the WSA. The Court in Ryrie does not engage in an analysis of what factors should be considered when determining whether to exercise that power.

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