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Common Intentions: The Standard of Review for Standard Form Wills

39 Est. Tr. & Pensions J. 138
Estates Trusts & Pensions Journal
March 2020
Article
Thomas Collinsa1
Copyright © 2020 by Thomson Reuters Canada Limited; Thomas Collins

I. Introduction

Wills, like other legal documents that regularly incorporate standard terms, make frequent use of boilerplate language. Boilerplate, because of its impersonal nature, does not sit comfortably with current ideas about the interpretation of wills. It exists in tension with the core notion that a will expresses a testator's unique intention. Indeed, boilerplate's prima facie genericity and impersonality seem to place it outside the considerations about the influence of factual matrices on the meaning of testamentary language that underlie current jurisprudence in this area. In that way, testamentary boilerplate resembles contractual boilerplate, which the Supreme Court of Canada held in Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co. to be reviewable on a correctness standard.1 In this paper, I speculate that standard form wills--or, at least, the standardized parts of wills--will also be reviewed on a correctness standard. That would best reflect the true nature of the boilerplate, as general and widely applicable language, and would promote key jurisprudential values like universality and cost-efficiency.

II. Defining the Standard Form Will

A will is a written instrument by which a person, the testator, directs the posthumous disposition of his or her property. Inherent to that definition is the individuality of a will. It is a document written by a particular testator and it directs the disposition of that testator's property. Hence Canadian courts' emphasis on determining and giving effect to a testator's intention in light of the total factual matrix.2

*139 Standard form wills conform prima facie with the above definition. Unlike standard form contracts, there is no question that standard form wills are wills.3 Standard form wills are simply wills which express a testator's intentions through recycled, “standard form” or “boilerplate” language. Reid Kress Weisbord and David Horton define “boilerplate” language as language that “is unlikely to leap out to testators and is copied wholesale from other documents.”4 When they say that it is “unlikely to leap out to testators”, they are implying that the language may express a testator's intention, but not in his or her own words.5 Instead, the language used sounds authoritative--and it may still be effective--but it is not tailored to a particular testator's circumstances.

The case law confirms that standard form wills built mostly of generic clauses do exist and are nevertheless valid.6 That may be surprising, in light of the supposedly immutable, personal nature of a will. To the extent that is the case, Margaret Radin has reconciled that apparent tension, in the context of standard form contracts:7

Standardization versus customization is a complex issue. The “versus” can mislead us. The two characterizations are not really opposed to each other .... Uniform terms serve as building blocks in a customized document. But those uniform terms themselves may be composed of building-block clauses arranged in a customized way.

Standard form wills are, admittedly, different than standard form contracts in several ways, crucially, that the latter may be issued to all clients of a company, or even to all participants in an industry.8 A standard form will, by contrast, would still be peculiar to a testator; it would simply be comprised of a more or less unique arrangement of standardized clauses, the personalized details of which would play a reduced role in the interpretation of the will. Instead, the majority of the *140 testamentary directions would express commonly seen and well-understood intentions.

Although completely generic wills may not be normal, at a minimum, Weisbord and Horton's empirical research suggests that boilerplate is endemic in wills, particularly for “non-salient” clauses: clauses “that govern important but obscure topics, such as what happens to the share of a beneficiary who dies before the testator”.9 This prevalence is understandable. Notwithstanding the costs of litigating clumsily implemented boilerplate, the use of standardized language reduces transaction costs. It allows lawyers to draft wills quickly and cheaply, because the modularity of boilerplate clauses makes manageable the otherwise complex system of a will.10Standardized language also promotes certainty. Weisbord and Horton explain that, once a provision has been reused often enough, “it confers ‘network benefits': an accumulation of judicial rulings that allows parties ... to predict its impact with greater clarity.”11 Indeed, boilerplate may come to be regarded as “the accumulated wisdom of prior drafters.”12 This is “particularly valuable in a risk-adverse field like will-drafting, where certainty is the coin of the realm.”13 A final reason that Weisbord and Horton suggest for the pervasiveness of boilerplate is that there may be a belief that it is unnecessary for a testator to understand every nuance in his or her estate plan. Even testators who retain a lawyer to draft a will assume that the lawyer will act in their best interest.14 To the extent that is true, one might say that a lawyer anticipates a client's intention and frames it in a legally effective manner.

The ostensible benefits of boilerplate, in the wills context, also hint at how boilerplate exists in tension with a traditional understanding of a will. Specifically, the facts that testators may not read or understand every clause in their wills, and that some clauses are reproduced in many wills, challenge the assumption that a will is wholly representative of an individual testator's *141 unique intentions. Commonness is not, of course, determinative of intention. For one thing, two testators could express different intentions with the identical language. An example of this might be where two testators refer to their respective children, but one testator conceives “children” as being limited to natural children. For another thing, two testators may also express identical intentions with the identical language. Take the previous example but assume that both testators use the word “children” to mean natural and adopted children. However, commonness should not be mistaken for standardization, which is the product of deliberate and coordinated efforts. “Boilerplate”, Henry Smith writes, “is highly standardized, and when courts interpret boilerplate, they treat it as intentionally standardized and not harboring unusual meanings.”15 Thus, boilerplate creates an opportunity for a different interpretive methodology, which does not disregard a testator's intention but which does presume, where appropriate, a standard intention.

III. Interpretation and Construction

To understand how courts would review the interpretation or construction of standard form wills, it is first necessary to explore the practice and principles of interpretation and construction. Specifically, it is useful to demarcate the practical bounds of those operations. It is also helpful to survey the history of those operations, because while the current state of the law is more theoretically sound than it once was, the older case law offers some clues as to how courts would approach a standard form will.

In his often-cited treatise, The Canadian Law of Wills, Thomas Feeney argued that there is a difference between will interpretation and construction. Interpretation “is the process of ascertaining the subjective meaning of the testator from the words of his will in the light of the surrounding circumstances.”16 Construction, on the other hand, involves applying certain legal rules on a testator's presumed intent and meaning, when interpretation fails, and those things cannot be ascertained from the words of the will. That is to say that*142 construction becomes important when there is no meaningful extrinsic evidence as to the peculiar meaning of the words used.

Feeney believed that interpretation should be favoured over construction, because it is the most apt way to reveal and respect a testator's intention.17 However, Michelle Boardman has argued that it more sensible to construe boilerplate than to interpret it, because its true meaning is found in the case law.18 Admittedly, her comparison draws from the U.S. experience with standard form contracts, where the “infiltration of lawyers in commercial contract drafting ... has led to more than language recycled by a single entity”. That, in turn, has generated widely spread, common boilerplate, and the common law thereof.

Some of Boardman's reasons for favouring construction do not map onto testamentary boilerplate. However, one justification she gives is that, because only the original drafter “may have read the language before signing, or even before litigation, a court is unlikely to find an actual joint meaning.”19 Wills are unilateral instruments, but it may still be the case that testamentary boilerplate is less attributable to a salient factual matrix, with regard to a testator's particular intention; the intention will be more or less limited to the meaning a court imputes to the relatively stable language used.20 Further to that point, Boardman argues that, given boilerplate's precedential potential, it may be less desirable to attempt subjective interpretation.21 Again, wills are more sensitive to subjective intention than contracts are but in the case of a standard form will, there may be some value in having rebuttable presumptions of standard intentions.

Although the difference between interpretation and construction may seem plain, today, Feeney observed that courts have rarely drawn a distinction.22 Courts may not have always needed to distinguish between them; there are two reasons why. The first is that, notwithstanding Feeney's preference for interpretation, both operations strive to achieve courts' goal of giving effect to a testator's intention. The second, more telling reason is that, well into the 20th century, courts *143 were reluctant to look beyond the words of a will, when determining a testator's intention. Thus, interpretation and construction were largely overlapping procedures.

Will interpretation and construction now vary, slightly, between provinces. However, the principles underlying those operations are more or less settled at common law. In Hicklin Estate v. Hicklin, the Alberta Court of Appeal held that there are four fundamental principles that govern the interpretation of a will; these apply equally to construction. First, and most importantly, courts must interpret wills to give effect to the intention of the testator.23 As Marshall C.J. of the U.S. Supreme Court so eloquently put it, in Smith v. Bell, “the intention of the testator [is] the polar star ... in the construction of wills”.24 The sanctity of testamentary freedom is grounded in the fundamental property rights that underpin modern, capitalist society.25 Second, to ascertain a clause's true meaning, courts must read that clause in the context of the entire will.26 Much like provisions in a statute, a will's clauses and words take colour from their context. Third, when interpreting the words of a will, and absent a compelling reason to do otherwise, courts must assume that the testator intended the words in the will to have their ordinary meaning.27 Finally, courts may canvas extrinsic evidence to ascertain a testator's intention.28

Today, it is accepted in Canada that a testator's testamentary intention is subjective.29 Consequently, when interpreting or construing a will, courts are concerned with the particular meaning that a particular testator attached to the words that he or she used in his or her will. This is a fact-intensive approach. Courts are more or less free to inquire into the testator's subjective intentions, because wills, unlike contracts, are unilateral instruments; there are no questions of reliance or of reasonable expectations arising from the will's execution.30

This so-called “modern” approach to will interpretation and *144 construction, which is especially visible in recent Alberta case law, is often contrasted favourably with the traditional approach. The latter has also been called the “literal” approach, because of its preoccupation with the paramountcy of the testator's words over his or her actual mental intentions.31 In Grover v. Burningham, Baron Rolfe summarized the function of the court of construction as “quod voluit by interpreting quod dicit”.32 That approach, which effectively conflated interpretation and construction, has since been roundly criticized. Lord Greene M.R. called the cases that espoused it “a blot on our jurisprudence”.33 Even earlier, in the Canadian case of Marks v. Marks, Idington J. rejected the literal approach, which he called a “chopping of legal logic rather than common sense”.34 Courts occasionally reverted to the traditional approach, but the thrust of the case law has long been towards subjective interpretation.

In actuality, the traditional approach was not unconcerned with a testator's intention. Rather, as Baron Rolfe's pronouncement suggests, courts employing that approach were simply keen to identify intention in the words of an instrument, rather than in extrinsic evidence. That is not to say that this formalistic approach did not cause problems. As Lord Denning mused in his dissenting opinion in Re Rowland, “[w]hen a judge goes so far as to say [‘I believe this to be contrary to the true intention of the testator but nevertheless it is the result of the words he has used’], the chances are that he has misconstrued the will.”35 It is only to say that the difference between these approaches is more a question of evidentiary and policy concerns than it is a question of curial function, as is often suggested.

On a voir dire in the case of Decore v. Decore, Clackson J. explained that the reason for courts' traditional hesitance about so-called “armchair” evidence--the extrinsic evidence about a testator's intention--was twofold. First, there was a concern about spurious claims flooding the courts. Second, there was a concern that unprobated evidence might improperly override a *145 probated will.36 Those concerns remain, even in provinces like Alberta, where s. 26 of the Wills and Succession Act37 provides that such evidence is prima facie admissible. Notwithstanding those concerns, Alberta courts will, in certain circumstances, admit even direct evidence of a testator's intention. In doing so, they follow the Supreme Court's principled approach to hearsay evidence.38

The most contentious aspect of the traditional approach to will interpretation was its precedential value. Alfred Oosterhoff recounts that there was a time when courts relied heavily on the precedential value of previous constructions, particularly in respect of technical expressions.39 Yet, even contemporary scholars realized that overreliance on precedent could work injustice by defeating a testator's true intention. In his 1885 article, “On the Limits of Rules of Construction”, Howard Elphinstone jibed that “you cannot construe one man's nonsense by another man's nonsense.”40 Laidlaw J.A. recognized the problem in his dissenting opinion in Re Hornell, when he wrote that “[t]wo minds may fairly differ on the interpretation to be placed on language which appears to be similar or identical.”41Thus, in Re Burke, Laidlaw J.A. held that one court's construction of certain testamentary words in one will is not binding on another court's construction of another will. Indeed, in that case, he dismissed precedent as being of “no assistance whatsoever”.42 That view may have been extreme, but the Supreme Court has also been wary of precedent's value. It has held that, when construing a will, courts should look to precedent only as a last resort.43

There is wisdom in not putting too much stock in one testator's ambiguous use of individual words like “children”, which can have multiple meanings, when interpreting another testator's will. However, it is at least understandable that, if courts believed that their duty was to determine a testator's express intention, similar expressions would gradually take on *146 particular meanings. As the Alberta Court of Appeal recently observed in Hicklin:44

There is a sound theoretical basis for the assumption that the testator selected the words he or she did because the words conveyed the meaning he or she wished to communicate to the estate trustee, the beneficiaries and any court reviewing the will, and that the testator expected all readers to accord to the words their plain and ordinary meaning, just as he or she did. “This assumption is made because our experience reveals that most people in a community will express themselves in language to which others in the community attach the same sense as the speaker”. [Hanson v. Mercredi, 2014 ABCA 216 (Alta. C.A.), at para. 9] This is why language is usually an effective means of communication.

Although the Court of Appeal's point was that a court must “adjust its linguistic standards and give the will a meaning consistent with the testator's language values”, it still recognized that language can settle in meaning; according to the traditional approach, the meaning would simply have been the one given by the jurisprudence.45

The use of boilerplate also creates a situation where certain phrases may reasonably acquire a more or less fixed meaning, because of wide and consistent use. Weisbord and Horton give the example of the “just debts” clause. This clause, which usually figures near the beginning of a will, says something like, “I direct my Trustees to pay my just debts as soon as is practicable”. Weisbord and Horton remark that the “prevalence of these ‘just debts' clauses is puzzling. Even if a will does not include a ‘just debts' clause, one of an executor's most elementary responsibilities is to reimburse a testator's creditors.”46 Nevertheless, as early as 1795, a North Carolina court observed that such clauses were “common in almost all wills.”47 Superfluous or not, it is probably safe to assume that such clauses could quickly acquire a particular meaning, if they have not already, were courts inclined to read them as boilerplate.

Boilerplate submits itself to some of the assumptions that earlier courts made about the use of language. Its relative fixity and ubiquity mean that its meaning may be presumed to almost inhere its literal form; that is to say that using boilerplate signals to the reader that those words carry a particular, accepted *147 meaning. Given the use of boilerplate specifically for standardization, there is an argument to be made that its interpretation should be similarly directed towards uniformity. That possibility is best addressed by considering the standard by which appellate courts would review courts of first instance's construction of testamentary boilerplate.

IV. The Standard of Review

Standard form wills should be reviewed on a correctness standard, in recognition of their detachment from the factual matrix that ordinarily surrounds a testamentary instrument. The same is true for those parts of a non-standard form will that contain boilerplate language. That a single document could be subject to two different standards of review is contemplated by the Supreme Court of Canada's decision in Mouvement la que québécois v. Saguenay (City), in which the majority held that different aspects of a tribunal's decision were subject to different standards of review.48

As its name implies, the correctness standard of review is concerned with a construction's correctness rather than its reasonableness. Specifically, the Supreme Court has held that the correctness standard of review applies to questions of questions of law--that is, “questions about what the correct legal test is”.49 Under the correctness standard, an appellate court will show little deference to a trial judge's construction of the law. The reason is that appellate courts are law-making courts. The principle of universality requires that lower courts not usurp that role. It also directs appellate courts to pronounce the law correctly rather than merely reasonably.50

No Canadian case has yet considered the standard of review for a standard form will. Nevertheless, the thrust of the case law suggests that were a court to encounter this question, it would conclude that correctness is the appropriate standard of review. Three reasons, in particular, support that hypothesis. First, the correctness standard of review is reserved for extricable questions of law.51Boilerplate's standardized nature renders its interpretation just such a question. Second, courts' historical *148 approach to will interpretation also indicates that interpreting boilerplate would be a question of law. Third, recent jurisprudence on standard form contracts, and on the applicability of that jurisprudence to the wills context demonstrates Canadian courts' willingness to adapt to modern realities, such as boilerplate.

V. Boilerplate as a Question of Law

Questions of law attract a correctness standard of review.52 On those questions, appellate courts are free to replace the trial judge's opinion with their own. In Housen v. Nikolaisen, the majority of the Supreme Court explained that there are at least two underlying reasons for this. The first is that the principle of universality demands that appellate courts ensure that courts of first instance apply similar legal rules to similar situations.53 As the Supreme Court of Canada held in Woods Manufacturing Co. v. R., public confidence in the administration of justice depends on its uniform and consistent application.54 A second and related reason for applying a correctness standard to questions of law derives from appellate courts' law-making role.55

In Canada (Director of Investigation & Research) v. Southam Inc., the Supreme Court held that questions of law “are questions about what the correct legal test is”.56 The fundamental quality of a question of law is generality--whether the issue has any precedential value. The court in Southam contrasted this with questions of mixed fact and law: “the matrices of facts at issue in some cases are so particular, indeed so unique, that decisions about whether they satisfy legal tests do not have any great precedential value.”57

Construing boilerplate is best viewed as a question of law. Boilerplate language is, by definition, mostly divorced from the idiosyncrasies of context.58 In other words, its meaning is general and broadly applicable. Its standardized nature lends it *149 great precedential value. Consequently, the interests of universality, fairness and the efficient allocation of judicial resources militate in favour of at least a presumption that a testator's intention aligns with the accepted meaning of a standard clause.59

VI. The Historical Standard

Canadian courts' historical approach to construing wills, and to the applicable standard of review, also supports a correctness standard of review. In Alberta Giftwares Ltd. v. R., the Supreme Court set out the law:60

in construing a will, deed, contract, prospectus or other commercial document, the legal effect to be given to the language employed is a question of law and, in the construction of such a document, it is an error in law to attribute a fixed meaning to a word of variable connotation by selecting one of alternative dictionary definitions without regard to the context of the paragraph or sentence in which the word is used.

Alberta Giftwares was not a case involving a will, and some courts have expressed reservations about its binding authority in the wills context. I return to that issue when discussing the thrust of the recent case law. For now, suffice to say that Alberta Giftwares accurately states the law as it was at least until recently.

As discussed above, well into the 20th century, Canadian courts occasionally took a literal approach to contractual interpretation. They relied heavily on the words that a testator used, with little regard to the particular meaning that the testator gave to those words. Feeney has suggested that the courts were overly concerned with uniformity.61 Generally speaking, that is probably true. However, given the courts' preoccupation with language, it is not surprising that they endeavoured to achieve uniformity in its application. While that may have been misguided, in the context of non-standard wills, it is reasonable when dealing with boilerplate.

*150 VII. Current Trends

Recent jurisprudence from the Supreme Court of Canada and from the western provinces points strongly toward reviewing standard form will construction on a correctness standard. The Supreme Court has yet to hear a case on the appropriate standard of review for standard form wills. In Ledcor, it did, however, clarify the standard of review for standard form contracts; some of the court's reasoning is transferable.

Before speculating on Ledcor's applicability, it is useful to evaluate how courts are currently reviewing non-standard form will interpretation and construction. In Zindler v. Salvation Army, the Manitoba Court of Appeal gave a helpful overview of the present state of the law. The court began by questioning the authoritativeness of Alberta Giftwares' dictum that interpreting the language of a will is a question of law (suggesting precedential value, in line with the traditional approach.) The Court of Appeal remarked that “Alberta Giftwares was a criminal case regarding an allegation of false advertising” and that Ritchie J.'s pronouncement, on the legal effect to be given to the language employed in a will, was a “passing comment”. 62 The court in Zindler ultimately held that, in light of the Supreme Court's decision in Creston Moly Corp. v. Sattva Capital Corp., wills should be interpreted in the context of their factual matrix, and that the resultant standard of review should be that of palpable and overriding error.63

Sattva was a case involving a contractual dispute and it is important for establishing the current standard of review for contractual interpretation. Writing for the majority, Rothstein J. held that “the historical approach [of viewing contractual interpretation as a question of law] should be abandoned. Contractual interpretation involves issues of mixed fact and law as it is an exercise in which the principles of contractual interpretation are applied to the words of the written contract, considered in light of the factual matrix.”64 Rothstein J. further justified his reasoning by explaining that “ascertaining contractual intention can be difficult when looking at words on their own, because words alone do not have an immutable or absolute meaning”.65

*151 The court in Zindler embraced Rothstein's reasoning. It held that the modern approach to interpreting a will is to determine the testator's subjective intention, by looking at the words he used, in light of the circumstances that surrounded their use.66 Therefore, pursuant to Housen, interpreting a will is a question of mixed fact and law, reviewable on a standard of palpable and overriding error.67 The Alberta Court of Appeal unanimously adopted that reasoning in Hicklin.68

Of course, neither Zindler nor Hicklin dealt with standard form wills; neither case foreclosed on the possibility of a correctness standard of review in such a case. In Ledcor, the Supreme Court revisited Sattva, and the majority held that:69 where an appeal involves the interpretation of a standard form contract, the interpretation at issue is of precedential value, and there is no meaningful factual matrix that is specific to the parties to assist the interpretation process, this interpretation is better characterized as a question of law subject to correctness review.

Wagner J. explained that standard form contracts are, among other things, widely distributed. As a result, their interpretation could affect many people.70 Similarly, due to the standard nature of standard form contracts, their interpretation does have the precedential value required to characterize it as a question of law.71

However, Wagner J. left open the possibility that the interpretation of a standard form contract could yet be a question of mixed fact and law, subject to deferential review. He gave two scenarios in which that could be the case, both of which could easily apply in the wills context. The first is “if the factual matrix of a standard form contract that is specific to the particular parties assists in the interpretation.”72 The second is “if the parties negotiated and modified what was initially a standard form contract”, introducing an idiosyncratic element that has little precedential value.73 It remains to be seen whether, in the latter scenario, the unaltered parts could nevertheless be extricated.

*152 Ledcor does not stand alone. Other cases suggest that, if standard form wills were construed, rather than interpreted, the construction would be a question of law. In MacDonald v. McCormick, the Nova Scotia Court of Appeal held that interpreting a deed may raise questions of mixed fact and law, to the extent that surrounding circumstances come into play. The construction itself is a question of law.74 In the case of Mawhinney v. Scobie, decided a little over a month before Hicklin, the Alberta Court of Appeal reviewed the construction of a clause in a will, for which there was no evidence of the circumstances at the time of drafting to help with interpretation. The majority followed Ledcor, holding that “[a]bsent a factual matrix, interpretation ... is largely a matter of giving the words in the will their ordinary meaning, supplemented by certain rules and presumptions of interpretation which is ‘better characterized as a question of law subject to a correctness review”’.75 O'Ferrall J.A. dissented, but only on the majority's conclusion that there was no meaningful factual context.76 He did not, in principle, disagree that construction is a question of law.

VIII. Conclusion

For decades, legal scholars and courts have grappled with the use and abuse of boilerplate language in contracts. In the field of contract law, boilerplate language gives rise to concerns about bargaining power, reasonable expectations and autonomy. Boilerplate language is also used extensively in testamentary documents, especially wills. However, its use in that area of the law has been subject to significantly less scrutiny. Yet there is every indication that the use of boilerplate in wills will increase with time, because of its convenience. Courts will, therefore, soon be confronted with the questions of how to construe testamentary boilerplate and on what standard to review that construction. Following the Supreme Court of Canada's wisdom in Ledcor, boilerplate's presumptive genericity, broad applicability and precedential value support construing standard form wills as questions of law and reviewing that construction on a correctness standard. Doing so would promote core *153 jurisprudential values like universality and cost-efficiency, which have heretofore animated the interpretation and construction of wills.

Footnotes
a1

JD Candidate - 2020, University of Toronto Faculty of Law.

1

Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37 (S.C.C.), at para. 24.

2

Zindler v. Salvation Army, 2015 MBCA 33 (Man. C.A.), at para. 10.

3

See, generally, Margaret Jane Radin, Boilerplate: The Fine Print, Vanishing Rights, and the Rule Law (Princeton: Princeton University Press, 2013).

4

Reid Kress Weisbord and David Horton, “Boilerplate and Default Rules in Wills Law: An Empirical Analysis” (2018), 103 Iowa L. Rev. 663, at p. 668.

5

Angus v. Angus Estate (1989), 35 E.T.R. 170 (Ont. H.C.), at para. 13.

6

See, for example, Giesbrecht v. Giesbrecht, 2018 SKQB 249 (Sask. Q.B.), at para. 2.

7

Margaret Jane Radin, “Boilerplate Today: The Rise of Modularity and the Waning of Consent” (2006), 104 Mich. L. Rev. 1223, at p. 1224.

8

Ledcor, supra, footnote 1, at para. 39.

9

Weisbord and Horton, supra, footnote 4, at pp. 668 and 701-702.

10

Henry E. Smith, “Modularity in Contracts: Boilerplate and Information Flow” (2006), 104 Mich. L. Rev. 1175, at p. 1180.

11

Weisbord and Horton, supra, footnote 4, at p. 675.

12

Mark Weidemaier, R. Scott, and M. Gulati, “Origin Myths, Contracts, and the Hunt for Pari Passu” (2013), 38 L. & Soc. Inquiry 72, at p. 82; Michelle E. Boardman, “Contra Proferentem: The Allure of Ambiguous Boilerplate” (2006), 104 Mich. L. Rev. 1105, at p. 1109.

13

Weisbord and Horton, supra, footnote 4, at p. 675.

14

Ibid. at p. 676.

15

Smith, supra, footnote 10, at p. 1176.

16

Thomas Feeney, The Canadian Law of Wills, 3rd ed. (Toronto: Butter-worths, 1987), vol. 2, at p. 10.

17

Ibid.

18

Boardman, supra, footnote 12, at pp. 1106 and 1110.

19

Ibid.

20

See, for example, Angus, supra, footnote 5, at para. 13.

21

Boardman, supra, footnote 12, at p. 1110.

22

Feeney, supra, footnote 16, at p. 10.

23

Hicklin Estate v. Hicklin, 2019 ABCA 136 (Alta. C.A.), at para. 48.

24

Smith v. Bell, 31 U.S. 68 (U.S. Sup. Ct., 1832), at p. 84.

25

Hanson v. Mercredi, 2014 ABCA 216 (Alta. C.A.), at para. 7.

26

Hicklin Estate, supra, footnote 23, at para. 49.

27

Hicklin Estate, supra, footnote 23, at para. 50; Re Tyhurst Estate; Smith v. Home of the Friendless, [1932] S.C.R. 713 (S.C.C.), at p. 716.

28

Hicklin Estate, supra, footnote 23, at para. 85.

29

Hanson, supra, footnote 25, at para. 10; Marks v. Marks (1908), 40 S.C.R. 210 (S.C.C.), at p. 217.

30

Feeney, supra, footnote 16, at p. 1; Weisbord and Horton, supra, footnote 4, at p. 672.

31

Feeney, supra, footnote 16, at p. 2; Lecky Estate v. Lecky, 2011 ABQB 802 (Alta. Q.B.), at para. 54, additional reasons 2012 CarswellAlta 946 (Alta. Q.B.).

32

Grover v. Burningham (1850), 5 Exch. 184, at p. 193.

33

Re Morgan (1942), 111 L.J. Ch. 231 (C.A.), at p. 233.

34

Marks, supra, footnote 29, at p. 220.

35

Re Rowland (1962), [1963] 1 Ch. 1 (C.A.), at pp. 9-10.

36

Decore v. Decore, 2009 ABQB 440 (Alta. Q.B.), at para. 8.

37

S.A. 2010, c. W-12.2.

38

Lecky, supra, footnote 31, at paras. 74-75.

39

A.H. Oosterhoff, C.D. Freedman, M. McInnes, and A. Parachin, Oosterhoff on Wills, 8th ed. (Toronto: Thompson Reuters Canada, 2016), at p. 440.

40

Howard Elphinstone, “On the Limits of Rules of Construction” (1885), 1 L.Q. Rev. 466, at p. 466.

41

Re Hornell (1944), [1945] 1 D.L.R. 440 (Ont. C.A.), at p. 444.

42

Re Burke (1959), 20 D.L.R. (2d) 396 (Ont. C.A.), at p. 398.

43

National Trust Co. v. Fleury, [1965] S.C.R. 817 (S.C.C.), at p. 829.

44

Hicklin, supra, footnote 23, at para. 63.

45

Hanson, supra, footnote 25, at para. 9.

46

Weisbord and Horton, supra, footnote 4, at p. 679.

47

Anonymous, 2 N.C. (1 Hayw.) 243 (S. Ct. L. & Eq., 1795), at p. 243.

48

Mouvement la que québécois v. Saguenay (City), 2015 SCC 16 (S.C.C.), at paras. 49-50.

49

Canada (Director of Investigation & Research) v. Southam Inc., [1997] 1 S.C.R. 748 (S.C.C.), at para. 35.

50

Housen v. Nikolaisen, 2002 SCC 33 (S.C.C.), at para. 33.

51

Creston Moly Corp. v. Sattva Capital Corp., 2014 SCC 53 (S.C.C.), at para. 55.

52

Housen, supra, footnote 50, at para. 8.

53

Housen, supra, footnote 50, at para. 9.

54

Woods Manufacturing Co. v. R., [1951] S.C.R. 504 (S.C.C.), at p. 515.

55

Housen, supra, footnote 50, at para. 9.

56

Southam, supra, footnote 49, at para. 35.

57

Southam, supra, footnote 49, at para. 37.

58

Smith, supra, footnote 10, at p. 1190.

59

Housen, supra, footnote 50, at paras. 16-17.

60

Alberta Giftwares Ltd. v. R. (1973), [1974] S.C.R. 584 (S.C.C.), at p. 588.

61

Feeney, supra, footnote 16, at p. 8.

62

Zindler, supra, footnote 2, at para. 5.

63

Zindler, supra, footnote 2, at para. 10.

64

Sattva, supra, footnote 49, at para. 51.

65

Sattva, supra, footnote 49, at para. 47.

66

Zindler, supra, footnote 2, at para. 8.

67

Zindler, supra, footnote 2, at para. 10; Housen, supra, footnote 50, at para. 1.

68

Hicklin, supra, footnote 23, at paras. 94-99.

69

Ledcor, supra, footnote 1, at para. 24.

70

Ledcor, supra, footnote 1, at para. 39.

71

Ledcor, supra, footnote 1, at para. 43.

72

Ledcor, supra, footnote 1, at para. 48.

73

Ledcor, supra, footnote 1.

74

MacDonald v. McCormick, 2009 NSCA 12 (N.S. C.A.), at para. 61.

75

Mawhinney v. Scobie, 2019 ABCA 76 (Alta. C.A.), at para. 20, leave to appeal refused 2019 CarswellAlta 1654 (S.C.C.).

76

Mawhinney v. Scobie, supra, footnote 75, at para. 68.

39 ESTTPJ 138

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