Mary Hoedl passed away in June 2011. She made a will in July 2006 at a Tillsonburg firm, which directed that the residue of her estate "be divided among my nephew, MIKE WEBBER, my dear friend, KLARA OYLER, and the surviving children of my spouse's sister, STEPHANIE SCHLAUCH...in equal shares for their sole use and benefit absolutely."
There's also a stirpital distribution clause in case "any of the said beneficiaries shall have predeceased me and any issue of such beneficiary shall be living at my death" - if Oyler had predeceased, for example, her kids (if any) would have gotten her share.
The executor of the estate is the lawyer who drafted the will, and he wrote to all the beneficiaries, that Webber would get a third of the estate; Oyler would get a third of the estate; and Schlauch's four children would split the remaining third, each taking 1/12 of the estate.
The lawyer reviewed his notes later, and realized that he had made an error in the correspondence: The six residuary beneficiaries were supposed to get equal shares, and he told the beneficiaries that. That was what Ms. Hoedl's intention had been, and he had drafted the will accordingly.
Oyler brought an application claiming that the original interpretation - that Oyler gets 1/3, not 1/6 - was correct, and moved to exclude the lawyer's notes from when he drafted the will, which was decided here.
This is why will-drafting is a careful exercise: What Ms. Hoedl intended is not particularly relevant to the interpretation of the will: The will gets interpreted based on what it says. If it was drafted incorrectly, that can't be remedied by saying "Oops, it should have said something different." However, if the will, on its face, isn't clear and unambiguous, then it may be possible to admit extrinsic evidence to assist in its interpretation.
With provisions of this nature, I've sometimes felt like a blacksmith, trying to hammer out all the imperfections, letting it cool, then coming back to it again. Fine differences in language can have very significant differences in interpretation, and lawyers have to account for different scenarios in terms of who might be alive at the time of the testator's death.
Consider this will language, for example, and imagine a scenario where one of Schlauch's children had predeceased, but left children surviving him or her. Do the children get a cut? Despite the stirpital distribution language, I'd be inclined to say "no", because of the inclusion of the word "surviving" in the gift to Schlauch's children in the first place. If one of them passed away, they aren't a nominal beneficiary anymore, so their kids don't get anything. That may or may not have been intentional.
The judge points out that it may have been *clearer* had each child been specifically named. Which is true, but that would have also changed the impact I describe of the stirpital distribution language, unless other (rather complex) language was inserted to deal with it.
Typically, to achieve a distribution like the one Oyler sought, you would use language first dividing the estate into x equal shares, and then give 1 share to Oyler, 1 share to Webber, and 1 share to be divided equally among Schlauch's children.
The motions judge is of the view that the language of the will clearly refutes Oyler's position, but the motion really only dealt with whether or not the lawyer's notes were admissible; the judge noted that, if Oyler's position was a possible interpretation of the will, it meant that the will was ambiguous, so the notes would be admissible to resolve the ambiguity.
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