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A good will should be written with the intent of limiting the chances of litigation upon the testator’s death, and many wills contain clear, simple language to express the wishes of the person writing the will. Failing to use clear language could result in parties ending up in a situation similar to that in a recent decision from the Alberta Court of Queen’s Bench.

The holographic will

The deceased passed away in 2010 and his six surviving children had been engaged in litigation since then. The court described the situation as “unfortunate” stating the family had been deeply fractured, and relationships had been overtaken by anger and resentment.

The will in question was a holographic will, meaning it was handwritten by the deceased. It was not witnessed but was dated December 1, 1995. The family agreed that the will was the last will and testament of the deceased. One section of the will stated that one of the children “WKJ” can “can live in the house for awhile to be determined by Him and his brothers + sisters.”

What does “awhile” mean?

WKJ and one of his brothers (“JK”) argued it was their father’s intention for him to remain in the home indefinitely. JK said that his father believed nobody should be displaced as the consequence of a loved one’s death. Instead, he said his father thought that things should stay the same after a death.

WKJ said that his siblings knew it was their father’s intention to leave the home to him to live in, even though he wouldn’t own it, referencing conversations they had as a family.

The other siblings argued that “for awhile” meant that WKJ could live in the house for a short period of time, long enough for him to get his affairs in order so the house could be sold and the proceeds divided amongst the children.

The court’s analysis

The court tried to determine the intentions of the deceased by looking at the ordinary meaning of the words in his will. The court found that it was clear the deceased wanted his estate to be equally divided amongst the family, and that his intention was to allow WKJ to live in the house after his death, “but only for so long as was agreed upon by all of the surviving siblings.” In this case, since the children could not agree on how long WKJ should be able to live in the house for, it had become time for WKJ to vacate it since the siblings clearly were not all in agreement that he could stay.

Wills can be challenged or contested by anyone who believes they have a financial interest in an estate. If you are considering filing an application to challenge a will, contact the estates lawyers at Derfel Estates Law before you proceed. We can help you determine whether you are eligible to bring such a claim, can help you understand your options and rights, and can represent you throughout the challenge process. Call us at 1-844-2-DERFEL or contact us online to schedule a consultation.

 

For professional service and expert advice on Estate Law matters contact Derfel Estates Law

Contact Derfel Estates Law today to meet a Toronto estate lawyer who will work tirelessly to achieve the best possible resolution to your will, estate, power of attorney, or trusts dispute.

Call us at 1-844-2-DERFEL or contact us using the form.

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