When making a will, you must take care to make sure that your intentions are clearly expressed and not left open for interpretation. When a will is unclear or uncertain, this provides an opportunity for a disappointed beneficiary to (1) argue an interpretation which favors them over another party, or (2) argue that the will or some part of it is fatally uncertain and therefore void.
The more complicated that you make a will, the more likely these issues may arise. These arguments tend to occur more in certain circumstances including:
- When a deceased decides to include a power of appointment – a power given to a person to select who shall receive an interest in property (instead of deciding who will receive the property and simply making a bequest to that person in your will); or
- When there is uncertainty with respect to a charitable bequest.
Both of these circumstances were present in the recent B.C. Supreme Court decision in Royal Trust Corporation Of Canada v. The Welfare Institution Of The Jews Of Athens 2022 BCSC 1454.
In her 1985 will, the deceased set up a trust for her daughter, to pay her the interest “as long as she shall live.” The deceased further provided in her will:
If my daughter shall by her Last Will and Testament appoint sum [sic] reasonable charity within the country of Greece for such funds they shall be delivered in accordance with the directions made in such Last Will and Testament of my said daughter.
If my said daughter shall fail to so designate and appoint by her Last Will and Testament then such money shall be paid to the President for the time being of Estia of Constaninopolis, Artistiduu 7, Kolonike, Ahtens, Greece.
“Estia of Constantinipolis” is a non-profit association in Greece that operates nursing homes near Athens, Greece.
In other words, the deceased’s daughter could decide what charity she wanted to receive the rest of her trust fund after she died (the power of appointment), or the default would be Estia of Constantinipolis.
The daughter made a will in Greece in 2017, in which she explicitly exercised the power of appointment, by appointing The Welfare Institution of the Jews of Athens, dab Reston Elderly Care Centre as the beneficiary. Then, the daughter made a will in Switzerland in 2018, in which she revoked the 2017 will, and left her entire estate to one person. She failed to appoint a charity in Greece as the beneficiary of the trust property (i.e. she failed to exercise the power of appointment).
The trust property was approximately $500,000, and the issue was who receives it.
First, it was argued that the power of appointment was invalid. The Court held that it was valid. The Court then held that the 2017 will (which appointed a charity) was revoked by the 2018 Will (which didn’t appoint a charity). As a result, the power of appointment had not been exercised, and so the default “Estia of Constantinipolis” would, on its face, receive the monies.
Next, it was argued that the Estia charity could not receive the gift because:
- The gift is to the President of Estia personally, or to his office on behalf of Estia;
- If the gift is to the President personally, it was unclear whether it was to the President in office at the time of the 1985 will (who was now dead – so the gift would have failed), or the president currently in office; or
- If the gift is to the current President by virtue of his office, and such is held in trust on behalf of the charity, the gift also fails because Greek law does not recognize trusts.
The Court did not accept any of these arguments. The Court had “no hesitation” concluding that the deceased intended to make the gift to the charity. There was no evidence that she had any relationship with the individual who was the president of Estia. It logically followed that it was the charity, not the person, who was the intended beneficiary.
While the Court did not appear to have any difficulty interpreting the will, it is likely that the proceedings could have been avoided had the will and the power of appointment been more clearly drafted (or perhaps if no power of appointment had been included at all, and the deceased had simply named the charitable beneficiary in her will).
By drafting the will in the manner that she did, it permitted a disappointed beneficiary the opportunity to argue for an interpretation that would benefit them. While the arguments were ultimately unsuccessful in this particular case, in some cases this may result in an interpretation that is not consistent with the deceased’s intentions, and in all cases will result in unnecessary expense to the estate.