Will and Trust Interpretations

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There are times when a testator has made a Will cannot be easily interpreted, or made changes that do not quite conform to the way the law allows such changes to be made. Sometimes, the drafting language in a Will or a trust is ambiguous or internally inconsistent. Other times, a provision in a Will or trust cannot be carried out.

Any person who is an estate trustee (also known as an “executor”), a trustee of a trust, or a person with a financial interest in an estate or a trust, may bring an application for the advice and directions of the court. A judge will then interpret the document and provide advice or directions to the person, executor or trustee, or in the case of a poorly drafted or mistake in drafting, a ‘rectification’ application.

When any beneficiary or contingent beneficiary is a minor or incapable, then the Office of the Children’s Lawyer or the Public Guardian and Trustee, as the case may be, will be involved in the application. Moreover, if the parties are particularly litigious, an executor or trustee may wish to obtain a court Order.

It is important to understand the potential liability of various solutions before independently pursuing any informal solution. This is most important to executors and trustee, in order to address any future liability that may not have been foreseen during negotiations.