Murray Estate

Murray Estate

There was a latent ambiguity because the will opened as disposing of all property but the residuary percentages totaled 90%; admissible surrounding circumstances (excluding direct statements of the testator) established a drafting error reducing the Salvation Army share to 10% instead of the intended 20%; the court may correct the mistake where the omission is unintentional and the testator's intention can be ascertained, so clause 6(d)(x) was amended to allocate 20% to the Salvation Army, rejecting intestacy and cy-près; special costs awarded to both the Salvation Army and to Watson out of the estate.

Citation
2007 BCSC 1035
Parties
Petitioners/executors: Norbert and Gillian Wollbold; Respondent/intestate Heir Representative: David Robert Watson; Respondent/beneficiary: Salvation Army, Public Relations Department, Vancouver; Estate/deceased: Estate of William Walter Robert Murray, Deceased
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
12 July 2007
Procedural Posture
Probate/will Construction (petition for Directions) / Chambers Hearing (reasons for Judgment)
Outcome
The court construed the will to correct a drafting error: the disputed 10% residuary portion is awarded to the Salvation Army, Public Relations Department, Vancouver (clause amended to 20%); cy-pres and intestacy were rejected; special costs awarded to the Salvation Army and to David Robert Watson payable from the...
Legal Topics
Will Construction, Partial Intestacy, Cy Pres, Extrinsic Evidence Admissibility, Costs
Source Language
English
Wills and Estates Probate Trusts Charity Law Will Construction Partial Intestacy Cy Pres Extrinsic Evidence Admissibility +1 more

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Parties

Norbert and Gillian Wollbold

Petitioners/executors

David Robert Watson

Respondent/intestate Heir Representative

Salvation Army, Public Relations Department, Vancouver

Respondent/beneficiary

Estate of William Walter Robert Murray, Deceased

Estate/deceased

Procedural Posture

Probate/will Construction (petition for Directions) / Chambers Hearing (reasons for Judgment)

Legal Issues

  1. 1 Whether the undistributed 10% residuary portion passes to the Salvation Army or results in partial intestacy to next of kin
  2. 2 Admissibility of solicitor's affidavit and distinction between direct extrinsic evidence of intent and surrounding circumstances
  3. 3 Whether the court may correct a drafting error to reflect the testator's intention

Ratio Decidendi

There was a latent ambiguity because the will opened as disposing of all property but the residuary percentages totaled 90%; admissible surrounding circumstances (excluding direct statements of the testator) established a drafting error reducing the Salvation Army share to 10% instead of the intended 20%; the court may correct the mistake where the omission is unintentional and the testator's intention can be ascertained, so clause 6(d)(x) was amended to allocate 20% to the Salvation Army, rejecting intestacy and cy-près; special costs awarded to both the Salvation Army and to Watson out of the estate.

Court Disposition

The court construed the will to correct a drafting error: the disputed 10% residuary portion is awarded to the Salvation Army, Public Relations Department, Vancouver (clause amended to 20%); cy-pres and intestacy were rejected; special costs awarded to the Salvation Army and to David Robert Watson payable from the...

Orders

  • Clause 6(d)(x) of the will is amended so that twenty (20%) percent of the residuary estate is given to the Salvation Army, Public Relations Department, Vancouver.
  • The disputed 10% residuary portion is awarded to the Salvation Army, Public Relations Department, Vancouver.