It’s the courts’ job to determine what was intended when a will is written, not to make that will fairer in hindsight, the Court of Appeal for British Columbia said in a ruling on a dispute over the treatment of real estate that soared in value over the past 40 years.
According to the court’s decision, shortly before a woman, Diane Brink, died in 1984, she added a clause to her will allowing her husband to remain in the house they shared until he died or sold it, at which point her children from a previous relationship would be entitled to her half of the value of the house.
The clause prompted a dispute over the meaning of that provision — whether the children were entitled to the value of her half of the property at the time she died, when it was valued at about $50,000 and carried a mortgage of $22,000, or at its current value of $1.2 million, with no mortgage. Her husband remained in the house until he died in 2021.
Essentially, it was up to the courts to decide whether the children were entitled to share $600,000, or just $14,000.
Initially, the B.C. Supreme Court ruled it was the latter — that the terms of the will provided for her children to share her half of the value of the property in 1984, not its current value.
The children appealed, arguing the trial judge made various errors, including that she failed to consider the context of the will when interpreting the contentious provision, made findings without evidence, and produced an unreasonable interpretation.
While the appeal court found the trial judge did err by considering the capital gains tax implications, it concluded this was not a material error and dismissed the appeal.
“Although I agree with the appellants that it was an error for the judge to consider capital gains implications that were not in evidence before her, in my view the error is not a material one,” it said.
“[H]aving closely read the words of the will and having concluded that only one interpretation made sense of all of its provisions, the assumption about capital gains tax implications was a further supporting factor, but not a critical one,” it found.
As a result, excluding her consideration of the capital gains implications “would not have altered” her decision on the correct meaning of the clause, the appeal court said.
The children also argued that it would make no sense for their mother to draft a will that left them the value of her half of a property “as it stood in 1984, knowing that they could wait years or even decades before receiving anything.”
However, the court rejected this ground of appeal too, finding the trial judge sought a reasonable interpretation of Brink’s intentions “as she lay in hospital, critically ill, and striving to do the right thing for both her children and her husband.”
“It must be remembered that when Diane Brink made her will in 1984, she could not have foreseen the astronomical increase in the value of real estate that was to come. Nor perhaps could she have anticipated that Robert would choose to remain in the property throughout his long life. If she had known these things, she might have drafted the will differently,” the court said.
However, the court stressed it’s not its job to make the will more equitable in hindsight.
“I recognize that there will be for the appellants little solace in these words. They will feel the sting of unfairness in the construction that the court has placed on their mother’s will,” the appeal court said.
“But the task of the court is not to rewrite a will to make it fairer in the present circumstances. It is to identify and respect the wishes of the testator as expressed at the time the will was drawn. In this regard, I must respectfully conclude that the judge made no error in carrying out the task before her,” it concluded.