Appellate court agrees with lower court’s application of armchair rule in interpreting a will

From testator’s vantage point, Court construes will in light of surrounding facts: armchair rule

Appellate court agrees with lower court’s application of armchair rule in interpreting a will
Ontario Court of Appeal dismissed appeal assailing judge’s application of “armchair rule”

The Ontario Court of Appeal has recently rejected an appeal assailing the motion judge’s application of the “armchair rule” in the interpretation of a will and agreed with the judge’s finding that interpreting two clauses together would cause patent inconsistency.

The case of Ross v. Canada Trust Company, 2021 ONCA 161 considered the issue of the interpretation of the provisions in a will regarding the disposition of a cottage property owned by the decedent, who died in 1971. The respondent estate trustee sold the property in August 2013 and proposed to distribute the remaining net sale proceeds equally to the decedent’s four surviving grandchildren, who were the ultimate beneficiaries of the proceeds of the cottage property according to the will.The appellant, who was one of the grandchildren, objected, claiming that the net proceeds should be divided into five equal shares, with two of the five shares going to him so that he would receive 40 per cent instead of 25 per cent of the proceeds.The motion judge, in interpreting the will, directed that the proceeds be equally distributed among the four grandchildren. The motion judge ruled that there would be a patent inconsistency if one were to incorporate the distribution directions in the will’s clause 3(I)(iii), or the general residue clause, within the specific provisions of clause 3(C), which dealt with the disposition of the cottage property. The motion judge resorted to the “armchair rule” because of this inconsistency.Under the “armchair rule,” the court places itself in the position of the testator at the point when they made their will. From that vantage point, the court reads the will and construes it while considering the surrounding facts and circumstances.

The Court of Appeal for Ontario dismissed the appellant’s appeal and the respondent’s cross-appeal, holding that the motion judge correctly resorted to the “armchair rule” in interpreting clauses 3(C) and 3(I)(iii) of the decedent’s will, in light of the patent inconsistency. The motion judge’s conclusion was well-supported by evidence and was free from palpable and overriding error, the appellate court said.

The appellate court said that the motion judge applied a sound interpretative methodology because he attempted to discern the decedent’s intention, based on the plain meaning of the will’s language, and upon finding this impossible, he took a step back to analyze the bigger picture of the surrounding circumstances, through application of the “armchair rule.”

The appellate court also found the respondent’s cross-appeal misconceived and meritless because it reflected a misunderstanding on the nature of an appeal, which should lie from the order or from the judgment, and not from the reasoning. In this case, the respondent submitted that, while they agreed with the judgment, they wanted to cross-appeal from the motion judge’s reasons.

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