/ Case Law

Case Brief - Appealing a decision interpreting a will

In Kirst Estate (Re), 2020 ABCA 233, the Alberta Court of Appeal considered an appeal of a trial judge's interpretation of a will.

Facts and Lower Court Ruling

William James Kirst Jr ("Kirst") died in 2010. He had made a will in 1995 that read:

Last Will & Testament
I, William J. Kirst Jr
Leave everything to the surviving children, Dubhe, Heidi, Josh, TWIG (Forest), Tracy, Alexander & Whitehorn.
Things to be kept as they are, and sold if they want, by the individuals.
Tracy Booth & Josh Kirst Whitehorn Kirst “WJK”
be executors

“WJ Kirst”
Things may be sold if agreed by all, especiall [sic] Kirst Exploration & Kirst Photographs equipment.
Whitehorn can live in the house for awhile, to be determined by Him and his brothers + sisters.

Following Kirst's death, a dispute arose between his children over the meaning of "for awhile" in the will, i.e. how long Whitehorn is entitled to stay in the house.

The trial judge determined that the natural and ordinary meaning of "for awhile" was that Whitehorn could remain in the house as long as the other siblings all agreed.

Since the siblings could not agree, the trial judge sent the matter to a case management judge to determine when Whitehorn had to move out. The case management judge ordered that Whitehorn had until April 30, 2020 to move out.

The Issue

Whitehorn appeals the trial judge's decision. He submits that the trial judge erred in fact and law by failing to find that Kirst intended to give him the right to live in the house indefinitely.


Legal Principles

The interpretation of a will, where the issue is the testator's subjective intention, is a question of mixed fact and law. A trial judge's decision can be reviewed if there's a palpable and overriding error (See Sattva Capital Corp v Creston Moly Corp, 2014 SCC 53).

When determining a testator's intention, courts should:

  • Interpret the will in a way that gives effect to the testator's intentions
  • Look at the will as a whole
  • Assume the testator meant words in their ordinary meaning, unless there's a good reason to think otherwise
  • Look at extrinsic evidence if appropriate

See Hicklin Estate v Hicklin, 2019 ABCA 136 at paras 90-104).

Application to the Facts

The trial judge did not make a reviewable error. It's clear that "for awhile" does not mean "indefinitely".

And the rest of the will makes it clear that Kirst wanted his estate to go to his children, not just Whitehorn. The house is the main asset of the estate. Kirst did not intend for Whitehorn to hold this up unconditionally.

The Alberta Court of Appeal dismissed Whitehorn's appeal.

Bottom Line

It's a high bar to overturn a trial judge's interpretation of a will. And it's better to prevent these disputes from arising by having a clear, well-drafted will prepared by a lawyer.

Patrick Hartford

Patrick Hartford

Patrick is the Founder of NoticeConnect.

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