In the recent case of Ritchie v Hamilton, 2024 BCSC 941, the Supreme Court of British Columbia was asked to determine what a testator meant when they referred to "my children".
In this case, the deceased, Mr. Ball (the "Deceased"), had three biological children from two marriages, as well as a stepson with whom he was close but who he never adopted, and two stepchildren from a third marriage, who he also never adopted. His children from his first marriage were Danelle and Richard (the "Respondents"). His daughter from his second marriage was Tina, and his stepson from the second marriage was Troy. The two stepchildren from the third marriage were not part of this proceeding.
In early 2022, the Deceased set about making his final will (the "Will"), and met with a notary in order to do so. When meeting, the notary asked the Deceased for the full names of his children, biological or adopted, and the Deceased informed her only of Troy and Tina. She took note of those names on a will instruction sheet.
In the definition section of the Will, the Deceased defines his children as: "My Children include Troy William Ritchie and Tina Nicole Coell." Later, in section "4. Headings" of the Will, the Deceased states that: "Where the word 'includes' or the word 'including' is followed by a list, the contents of the list are not intended to limit the generality of the expression preceding the word 'includes' or the word 'including', as the case may be." Finally, in the residue clause, the Deceased states that:
"8. Residue of Estate
I direct my Trustee to divide the
residue of my estate equally between my children;
except if either child of mine has died before that date and one or
more of his or her children are alive on that date, that deceased
child of mine will be considered alive for the purposes of the
division and the share created for that deceased child of mine will
be divided equally among those of his or her children who are alive
on that date;"
Troy petitioned the Court for a declaration stating that the Deceased only meant Troy and Tina when he wrote "my children", and did not intend to include the Respondents or anyone else in this definition. Troy's petition was contested by the Respondents, who argued that the Deceased intended to include them, as they had had some contact with the Deceased as adults and as the Deceased had reportedly told them that he felt guilty for not being more involved in their lives when they were children. The Respondents did not claim that the Deceased promised to include them in his estate.
All parties were in agreement that there was inconsistency in the language of the Will, but the Respondents argued that the inconsistency was not an ambiguity, which as per the Wills, Estates and Succession Act, [SBC 2009] CHAPTER 13 (the "WESA") is required before the Court can consider extrinsic evidence. The Respondents took the stance that by leaving his residue to "my children," the Deceased intended to benefit his biological children and Troy, who, if not for the definition section, would not have been included in the Will, as he does not fall into the definition of a child under the WESA. However, the Court did not find this line of argument persuasive, as Tina had been included in the definition section despite also being a biological child of the Deceased.
The Court began with a "four corners" interpretive method, relying on Bradley Estate, 2023 BCSC 618 and Killam v. Killam, 2018 BCCA 64. The Court ultimately found that the Will lacked precision of language, and that the Deceased's intention could not, therefore, be discerned only from reading the Will. In noting the lack of precision in drafting, the Court pointed to the fact that in the description section of the Will, the defined term "My Children", a capitalised term, is listed, but that this capitalised term is not repeated again in the Will. Additionally, the Court noted that the definition found in the definition section of the Will is in conflict with s. 8.1 and s. 8.2 of the Will, as s. 8.1 includes the non-capitalised "my children" and s. 8.2 includes "either child of mine" and later "his or her children" suggesting only two children. The Court, therefore, concluded that it was not clear who the intended beneficiaries were from the reading of the Will and that the four corners approach to will interpretation would not resolve this issue.
The Court determined that, given the ambiguity of the Will itself, extrinsic evidence was admissible, and through this, confirmed that the Deceased's intention was to benefit only Troy and Tina. S. 4(2) of the WESA notes that ambiguity in a will allows for the introduction of extrinsic evidence, and says:
4(2) Evidence of testamentary intent, including a statement made by the will-maker, is not admissible to assist in the construction of a testamentary instrument unless
(a) a provision of the will is meaningless,
(b) a provision of the testamentary instrument is ambiguous
(i) on its face, or
(ii) in light of 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
(c) extrinsic evidence is expressly permitted by this Act.
The most relevant factors to the Court were that when the notary pressed the Deceased for the names of his children, the Deceased listed only Troy and Tina, and that the addition of the word "includes" in the definition section of the Will was included by the notary as per her custom, not as per the Deceased's instructions. The Court also found that the Deceased's sister had deposed that the Deceased had told her several times that he wanted everything to go to Troy and Tina. Notably, the Court found no evidence that the Deceased had told anyone that he intended to leave any part of his Estate to his children from his first marriage.
As such, the Court found in favour of Troy, and declared that the Deceased had only meant to benefit Troy and Tina, and not his other biological children.
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