All About Estates

Word Choice in Will Drafting

It is a well-known drafting principle that when draftspersons are drafting Wills (and other legal documents), it is best to avoid: (i) using different words and phrases to describe the same thing; and (ii) using the same words and phrases to describe different things. Two cases illustrate the issues that can arise when these drafting principles are not followed.
In Barbeau Estate 2012 ONSC 3249 (CanLII), which was summarized by fellow blogger Jasmine Sweatman in a previous blog, the court was asked to interpret a 30 day survivorship clause in circumstances where spouses died exactly 30 days apart. This interpretation was made more complex due to the fact that the Will used slightly different phrases to describe the same time period – i.e., the residue was to be paid to the spouse if she survived the testator for a period of 30 days but the residue was to paid to the remainder beneficiaries if the spouse died within a period of 30 days.
In Jestley v. National Trust Co. (1994), 2 E.T.R. (2d) 239 (B.C.S.C.), a specific clause of the will provided that all articles of a personal, domestic and household use were to be transferred to Jestley, while a residual clause provided that the residue of the estate was to be divided between Jestley and others. However, the specific clause providing Jestley with the personal, domestic and household articles also referred to her right to retain any portion of the estate for her own use absolutely. The court, when asked to consider whether the term “estate” when used in the specific clause was meant to refer to the testator’s entire estate or only to an “estate” consisting of the personal, domestic and household articles, found in favour of the latter argument.
These cases demonstrate that word choice in Will drafting is very important and that very small differences or similarities in the language chosen can cause interpretation issues in the future.
Laura West

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