When a will is silent or unclear, Ontario courts employ specific rules of construction and consider the admissibility of extrinsic evidence to interpret the testator’s intentions. The primary objective is to honor the testator’s wishes as expressed in the will, without rewriting it. Courts focus on the language used in the will, rather than relying on direct extrinsic evidence of intent (Campbell v. Evert, 2018 ONSC 593, paras. 23-24).

The “armchair rule” is a key principle in will interpretation, requiring the court to consider the circumstances at the time the will was made to ascertain the testator’s intention (Love v. Wheeler, 2019 ONSC 4427, paras. 21-24). For instance, in Love, the court examined the surrounding circumstances and an agreement between the sons to determine the testator’s intention regarding property left to them “jointly or the survivor of them.”

Extrinsic evidence, which includes information outside the will, can be admitted to aid in its construction, particularly when there is latent ambiguity—where the language is clear, but its application to the facts is not (Campbell v. Evert, 2018 ONSC 593, paras. 23-24). However, direct evidence of the testator’s intention is generally inadmissible unless there is equivocation in the will (Love v. Wheeler, 2019 ONSC 4427, paras. 21-24).

Ontario courts can correct drafting errors if it is evident that a mistake occurred, the mistake does not reflect the testator’s intentions, and the correction aligns with the testator’s clear intention (Kurt v. Kurt and Sullivan, 2023 ONSC 6599, paras. 37-38). In Kurt, the court corrected a drafting error to align with the testator’s intention, considering both direct and indirect extrinsic evidence.

The Succession Law Reform Act (R.S.O. 1990, c. S.26) provides statutory guidance on will interpretation, including addressing ambiguities and the use of the law of the testator’s domicile at the time of making the will. Section 21.1 allows the court to validate a document that does not meet formal execution requirements if it sets out the testator’s testamentary intentions. Recent cases such as Cruz v. Public Guardian and Trustee, White v. White, and Vojska v. Ostowski illustrate the application of this validating power, emphasizing that the document must represent a “deliberate or fixed and final expression of intention.”

These principles and cases demonstrate the nuanced approach Ontario courts take in interpreting ambiguous wills, balancing the need to respect the testator’s intentions with the legal principles governing estate distribution. Understanding these rules is crucial for those involved in estate planning or disputes to ensure that a will accurately reflects the testator’s wishes.