Estate Administration: When Does A Will “Speak”?

Correctly interpreting a will is a critical element of estate administration. While estate trustees can bring an application for directions in cases of uncertainty, the time and expense of an application may be avoided by applying principles of interpretation. One such principle – that a will is presumed to have been made immediately before death, regardless of when the will was made – was recently applied by the Court of Appeal in VanSickle Estate v VanSickle, 2022 ONCA 643.

The issue in this case arose due to a change in the nature of the testator’s business between the date the will was made and the date of death. The testator, together with her husband, owned and operated a hobby farm. She had six children, all of whom helped with the farm while living at home, but by the time the will was made, only one son was still involved with the farming business. In recognition of his involvement, the will included a clause that allowed him to purchase the business for a set price.

The will referred to the business as “the farming business carried on by me” at the address of the farm. While the testator was actively involved with running the farm at the time the will was made, at the time of her death, she was leasing the farmland to her son, who eventually subleased the land to be farmed by others. For the purposes of estate administration, therefore, it became necessary to determine whether the testator was “carrying on” a farming business at the time of her death. The issue was of particular importance given that the value of the farmland had increased significantly between the date of the will and the date of death.

The application judge held that the “farming business” in question was active cultivation of the land, i.e., the business that the testator was running at the time the will was made, rather than the business of simply renting the farmland. This decision was overturned on appeal, due to the judge’s failure to apply the presumption that a will “speaks and takes effect as if it had been made immediately before […] death” (as set out in s. 22 of the Succession Law Reform Act).

Whether a will is made 20 years or 20 days before death, any clauses in the will that address the testator’s property are to be read as though the will was made immediately before death. This principle applies to all wills made in Ontario, unless the will is drafted so as to demonstrate a “contrary intention” by the maker of the will.

Applying this presumption to the will in the VanSickle case, the Court of Appeal held that the change in the nature of the farming business was immaterial. Although the testator was no longer actively involved in farming, she did lease the farmland to be farmed, received income from the lease, and declared that income on her tax returns. There was, therefore, a viable farming business carried on by her that could be purchased by her son. Furthermore, there was nothing in the will to suggest that the “farming business” required her direct involvement in the farm, and no evidence about the circumstances surrounding the making of the will that would support such an interpretation.