Question of the Interpretation of a Last Will Clause

The interpretation of a last will clause can become one of the most important questions in the administration of an estate. A testament may appear clear when it is signed, yet after the testator’s death, a particular clause or provision may raise uncertainty. The wording may have more than one possible meaning, two provisions may appear inconsistent, a beneficiary may be described imprecisely, or circumstances may have changed between the date of the will and the opening of the succession.

In Québec, resolving such a question is fundamentally an exercise in determining and giving effect to the intention of the testator, within the framework established by the Civil Code of Québec.

What Does It Mean to Interpret a Last Will?

Interpretation becomes relevant when the meaning or effect of a testamentary clause is uncertain.

A will is more than a collection of isolated clauses. A will is a unilateral and revocable juridical act by which a testator disposes, by liberality, of all or part of his or her property, with effect upon death.

Accordingly, when a question arises concerning the meaning of a last will provision, the objective is not simply to determine the dictionary meaning of individual words. The central question is generally:

What did the testator intend this provision to accomplish?

This principle is particularly important in Québec succession law because of the freedom afforded to a person to determine, by will, how his or her property will devolve upon death.

The Intention of the Testator Is Central

Every person having the required capacity may, by will, provide otherwise than as established by law for the devolution of all or part of his or her property upon death.

This freedom of testation has an important consequence for the interpretation of a will: the testator’s intention occupies a central position.

Testamentary provisions, whether expressed as an appointment of an heir, a gift, a legacy or under other terminology indicating the testator’s intentions, take effect according to the rules applicable to the different categories of legacies. Significantly, those rules, as well as the meaning normally attributed to certain terms, give way where the testator has sufficiently expressed a different intention.

Therefore, the interpretation of a testamentary clause should seek to respect what the deceased actually intended through the will rather than mechanically applying a particular label or expression without regard to the testament as a whole.

When Can a Last Will Clause Raise an Interpretation Question?

Questions of interpretation can arise in many different situations.

For example, a will may provide that a particular person is to receive a property without explaining what happens if that property is sold before death. A provision may identify a beneficiary using terminology that could apply to more than one person. Another clause may leave property to “my children” or “my descendants” without making the intended scope entirely apparent in the particular circumstances.

Interpretation issues may also arise where:

• two testamentary provisions appear to contradict each other;
• the same property appears to have been dealt with in different clauses;
• a beneficiary is described incorrectly or ambiguously;
• the will uses technical or non-technical language inconsistently;
• the extent of a legacy is unclear;
• a condition attached to a legacy is uncertain;
• a provision concerning the residue of the estate is incomplete or ambiguous;
• the will does not clearly address what happens if a beneficiary dies before the testator;
• several wills or testamentary amendments must be read together; or
• events occurring after the will was signed create uncertainty about how a provision should operate.

The legal issue in such cases is not necessarily whether the will itself is valid. A perfectly valid will can contain a clause whose meaning, scope or application requires interpretation.

A Will Should Be Considered as a Whole

A testamentary provision generally should not be considered in isolation.

The meaning of a particular word or clause may become clearer when it is examined in relation to the other provisions of the will. The structure of the testament, the distinction between specific and residual gifts, definitions used elsewhere in the document, and the relationship between different provisions can all be relevant to understanding the intended testamentary scheme.

For example, an interpretation that appears plausible when one sentence is read alone may become difficult to sustain if it contradicts several other provisions of the same will.

The purpose of interpretation is therefore not to rewrite the testament. It is to identify the meaning that can properly be attributed to the language chosen by the testator, considered in its appropriate context.

Clear Wording and Ambiguous Wording

There is an important distinction between interpreting an ambiguous testamentary clause and attempting to change a provision merely because its consequences appear surprising, unequal or undesirable.

Where the words of the testament clearly express the testator’s intention, interpretation cannot normally be used simply to substitute another outcome that might appear more reasonable to a beneficiary or an heir.

The fact that a testamentary disposition produces an unexpected result does not, by itself, make the clause ambiguous.

A genuine interpretation question is more likely to arise where the language reasonably permits different meanings or where applying the provision to the relevant facts creates uncertainty that cannot be resolved by simply reading the clause on its face.

The Circumstances Surrounding the Will

Depending on the nature of the ambiguity, the circumstances in which the testament was made may become relevant to understanding the language used by the testator.

This does not mean that surrounding circumstances can automatically replace the written words of the will. There is an important difference between using context to understand what a testator meant and using subsequent evidence to create a new testamentary disposition that the deceased never made.

The written testament remains the essential starting point.

The interpretation exercise is directed toward discovering the intention expressed through the testament, not toward constructing a different will after the testator’s death.

Interpretation Can Determine the Nature of a Legacy

The characterization of a testamentary provision can have significant consequences for an estate.

The Civil Code of Québec recognizes three principal types of legacies: universal legacies, legacies by general title and legacies by particular title.

A universal legacy gives one or more persons the right to receive the entire succession. A legacy by general title concerns, among other possibilities, an aliquot share of the succession or certain universalities of property. A legacy that falls into neither category is a legacy by particular title.

Determining which category applies may affect the beneficiary’s status and rights. For instance, a universal legatee or legatee by general title who accepts the legacy is an heir, whereas a legatee by particular title is not an heir, although that person has rights in the property specifically bequeathed.

Consequently, the interpretation of a few words in a testament may sometimes determine not merely what property a person receives, but that person’s legal position in the succession.

What Happens to Property Not Effectively Disposed of by the Will?

Interpretation can also become important when determining whether a testament actually disposes of particular property.

Property for which the testator made no provision, or property in respect of which testamentary provisions have no effect, remains in the intestate succession and devolves according to the rules governing legal devolution.

This can make the interpretation of a residual clause particularly significant.

A broadly drafted residue provision may prevent certain property from passing according to the rules of intestate succession. Conversely, if the wording does not encompass the property in question, the result may be a partial intestacy even though the deceased left a valid will.

Interpretation Is Different From Verification of a Will

The interpretation of a will should also be distinguished from its verification.

Under Québec law, a holograph will or a will made in the presence of witnesses generally requires verification following the testator’s death. Verification concerns recognition of the testament as a valid testamentary instrument in accordance with the applicable rules.

Interpretation addresses a different question: what does the will or a particular testamentary clause mean?

A will can therefore be duly verified and still subsequently give rise to a dispute concerning the interpretation of one or more of its provisions.

Interpretation Is Different From a Will probate

A dispute about interpretation does not necessarily involve an allegation that the testament is invalid.

Challenges involving testamentary capacity, undue influence, defects in the required form, or other grounds of nullity raise questions that are distinct from the interpretation of an otherwise valid testamentary provision.

In an interpretation dispute, the parties may all recognize the existence and validity of the will while disagreeing fundamentally about what a particular clause means and how the estate must consequently be distributed.

Who May Be Affected by the Interpretation of a Testamentary Clause?

An interpretation question can affect many persons involved in a succession, including:

• heirs;
• universal legatees;
• legatees by general title;
• particular legatees;
• the liquidator of the succession;
• substitute beneficiaries;
• persons who would inherit on an intestacy; and
• in appropriate cases, trustees or other persons whose rights or obligations depend on the testament.

The liquidator may face a particularly difficult position where competing interpretations would require different distributions of estate property.

Distributing property on the basis of an incorrect interpretation may create further disputes. For that reason, uncertainty about an important clause should ordinarily be resolved before an irreversible distribution is made.

What If the Interested Parties Disagree?

Sometimes everyone concerned by an estate agrees on the meaning of a clause. In other cases, one beneficiary may argue that a provision creates a particular legacy while another maintains that the same property falls into the residue of the succession.

Where the disagreement cannot be resolved, a court may ultimately be required to determine the meaning and legal effect of the disputed testamentary provision.

The court’s task is not to decide what the testator should have written. Nor is it to redistribute the estate according to what appears fairest after death. The essential issue remains the intention expressed by the testator through the testament, interpreted according to the applicable principles of Québec law.

Examples of Questions Concerning the Interpretation of a Last Will Clause

Typical questions may include:

Who is the intended beneficiary?
A description in the will may correspond to more than one person or may contain an error.

What property is included in the legacy?
The wording may leave uncertainty as to whether related property, accounts, investments or accessories form part of a gift.

Does a beneficiary receive a fixed amount, a percentage or the residue?
Different provisions of the testament may need to be reconciled.

What happens if the named beneficiary died before the testator?
The answer may depend on the wording of the will and the applicable provisions of the Civil Code of Québec.

Does a condition attached to a legacy apply?
The precise language and legal effect of the condition may require examination.

Does a later testament revoke an earlier provision?
The relationship between several testamentary instruments may have to be determined.

Who receives property that is not expressly mentioned?
The answer may depend on the scope of the residual clause and, if the property was not effectively disposed of, the rules of intestate succession.

Why a Single Clause Can Affect the Entire Estate

A short testamentary clause can have consequences far beyond the particular sentence in which it appears.

Its interpretation may determine the identity of an heir, the classification of a legacy, the ownership of valuable property, the application of the residue, or whether part of the estate devolves according to the legal rules of intestate succession.

For this reason, interpretation disputes in Québec succession law require careful attention to the exact wording of the testament, the testamentary scheme as a whole, the intention of the testator and the applicable provisions of the Civil Code of Québec.

Key Takeaway: The Testator’s Intention Guides the Interpretation

The fundamental question in the interpretation of a last will clause in Québec is not simply what a particular word might mean in the abstract. It is what the testator intended the testamentary provision to mean within the will as a whole and within the legal framework governing successions.

The starting point is always the testament itself.

Where its meaning is clear, that expressed intention is to be respected. Where a genuine ambiguity exists, interpretation seeks to resolve the uncertainty without rewriting the deceased’s last wishes.

A question concerning the interpretation of a testamentary clause can therefore become decisive for the administration and distribution of an estate. Correctly identifying the meaning of the provision helps ensure that the succession is ultimately settled in accordance with the testator’s legally expressed last wishes.

This text is provided for legal information purposes only. If you have a specific question regarding your personal situation, please contact a lawyer.

Allen Madelin Avocats offer consultations both in person and via videoconference. The first consultation is offered for $125.For more information, please contact us by telephone: 1 514 904 4017 or by e-mail: [email protected].