Sometimes It Just Doesn't Add Up

William Murray died in September 2005, having outlived his wife. He never had any children, brothers or sisters. His nearest living relative was a second cousin, with whom he had little or no contact.

In his last will, Mr. Murray left friends and charities various percentages of his estate. The will included a gift of ten percent of the residue of his estate to the Salvation Army. His will also included a provision that if any of the beneficiaries fail to acquire their percentage share (for example, if they died before Mr. Murray), that share will go to the Salvation Army.

There was just one problem with the will: the percentages added up to ninety percent. The will did not dispose of the other ten percent.

The lawyer who drew the will provided an affidavit to the court, with the lawyer's notes. The affidavit and notes indicated that Mr. Murray had instructed the lawyer that he wished to leave the Salvation Army twenty percent of his estate. The lawyer made an error, and neither the lawyer or Mr. Murray caught the error when they reviewed the will before signing.

It seems pretty clear what should happen, right?

The rules for interpreting wills are like the scenic route: you may get to the right place, but you will get there in a round-about way. The rule in British Columbia is that the court may not consider direct evidence of what the testator (in this case, Mr. Murray) told the lawyer or others he intended. (There is a limited exception, which does not apply here.) The court can consider evidence of surrounding circumstances, such as Mr. Murray's relationship with his family and beneficiaries.

This rule makes theoretical sense. The theory is that, if the courts allow direct evidence of intention, they will in effect allow the will to be amended by evidence that does not meet the formal requirements for a valid will. But if theoretically sound, this rule prohibiting direct evidence of intention may defy common sense in practice.

Whether the rule is sound or not, the court could not take into consideration the lawyer's evidence that the testator said he wanted the Salvation Army to receive twenty percent of the estate.

In his reasons for judgment in Murray Estate, 2007 BCSC 1035, Mr. Justice Wilson found that Mr. Murray intended to dispose of all of his estate, rather than just ninety percent. He based this both on the wording of the will, which gave all of the estate to Mr. Murray's executors to distribute, and on a presumption that people intend to dispose of their entire estates when they make a will.

Mr. Justice Wilson also considered the fact that Mr. Murray did not have much contact with his father's side of the family, who would inherit if the court found that the will failed to dispose of ten percent of the estate (this is known as a partial intestacy).

The key to the decision appears to be the clause providing that if any of the percentage gifts fail, the undistributed share would go to the Salvation Army. Although this clause did not apply directly to the undisposed ten percent, the court inferred from this clause that Mr. Murray intended to make the Salvation Army the ultimate residual beneficiary.

Mr. Justice Wilson interpreted the will as disposing twenty percent of the estate to the Salvation Army.