BC Court of Appeal upholds judge's interpretation of will's novel clause

The British Columbia Court of Appeal has affirmed a judge’s interpretation of a will and noted that the court’s task was not to rewrite the will to make it fairer, considering the time that elapsed and the property value’s increase. 

In Brink v. Reeves Estate, 2025 BCCA 295, the testator and her common law husband bought a home in Langley in 1982, which they held as joint tenants. In 1984, the property value was about $50,000, with a mortgage of around $22,000. 

In August 1984, the testator was fighting the final stages of terminal illness in the hospital. Five days prior to her death, she severed the joint tenancy. Two days before her death, she executed her will. She died aged 41. 

The will’s novel clause delivered the use, occupation, and enjoyment of the testator’s half interest in the Langley property to benefit her husband and four children from a prior relationship. If the husband died or sold the Langley home, the half interest would go to the children per stirpes and the husband or his estate. 

The husband retained full possession of the Langley property, married another woman in 1997, and started living with her in the Langley home until his death in March 2021. 

His widow, who was the estate’s executrix, continued living in the Langley property. The current value of the now mortgage-free property was $1.2 million. 

The appellants, who were the testator’s four adult children, alleged that the novel clause gifted the husband a life estate in their mother's half interest in the Langley home and distributed her half interest to them in equal shares upon his death. 

The husband’s estate countered that the novel clause gifted the husband the testator’s half interest in the Langley property, conditional upon his paying her children the value of the equity she held in the property when she died. 

Before the Supreme Court of British Columbia, the executrix brought a petition requesting an interpretation of the will’s disputed clause. In June 2024, a BC Supreme Court judge decided the novel clause granted a conditional gift. 

Interpretation upheld

The Court of Appeal for British Columbia dismissed the appellant’s appeal and application to adduce fresh evidence. 

The appeal court ruled that the appellants’ interpretation of the will would make its terms redundant. The appeal court noted that it had to determine the testator’s intention at the time of the will’s making. 

First, the appeal court found no merit in the appellants’ appeal ground that the judge erred by failing to apply s. 23 of BC’s Land Title Act, 1996, and the presumption that the estate continued holding the full value of the testator’s undivided half interest as a tenant in common. 

The appeal court acknowledged that the judge did not consider this aspect of the appellants’ Land Title Act argument. However, the appeal court deemed it irrelevant to the issues. 

Second, the appeal court disagreed with the appellants’ appeal ground that the judge failed to assess the entire will in interpreting its novel clause. The appeal court said the judge examined all the will’s words and concluded that only one interpretation made sense of all its provisions. 

The appeal court saw no error in the judge’s conclusion that she could only give meaning to the will’s valuation and waiver of interest terms if the testator intended to gift her children the value of her interest in the property at the time of her death, and gift her husband her interest in the property itself, subject to his payment of the gift to her children. 

Third, the appeal court accepted that the judge inappropriately considered the will’s capital gains tax implications, which the parties did not offer as evidence. 

However, the appeal court considered this error immaterial because the judge’s assumption about the capital gains tax implications served as a further supporting factor, not a critical one. 

Fourth, the appeal court rejected the appellants’ argument that the judge made an unreasonable interpretation by failing to weigh the testator’s surrounding circumstances. 

The appeal court said the judge: 

• was aware of the appellants’ position and the unfairness they perceived in interpreting the will the way she did 
• put herself in the testator’s shoes 
• concluded that her interpretation was consistent with the testator’s expressed intentions in the will and reasonable in the circumstances, as she lay critically ill in the hospital and tried to do the right thing for her husband and her children 

According to the appeal court, when the testator made her will in 1984, she could not have predicted the astronomical increase in the real estate’s future value and her husband’s choice to stay in the property for the rest of his long life. The appeal court acknowledged that she might have drafted the will differently if she had anticipated these developments. 

Fifth, the appeal court disagreed with the appellants’ appeal ground that the judge erred by issuing an order with which the testator’s estate could not comply.

The appeal court held that the judge’s order did not compel the estate to take any steps. The appeal court noted that the executrix’s petition requested the construction of a single clause in the will and asked for no vesting orders. 

The executrix conceded that she needed to take other steps, including resolving the capital gains taxes, before the estate’s distribution.