Views from the Airstream: A Case Comment on Gates Estate (Re), 2018 NSSC 266

Overview

The blog has been quiet lately. No estates decisions of note have issued in Nova Scotia for several weeks, and so I am reaching into the archives instead.

I am starting with Gates Estate. It was my first estate litigation file, and I sat second chair to superb trial counsel. I learned a great deal both from him and from counsel opposite over the course of a four-day hearing in Bridgewater.

In this case, the court applies the armchair rule across a large evidentiary record. It illustrates two things: when a court may look beyond the will to the surrounding circumstances, and the kinds of evidence it will weigh to read a will correctly. Greta Gates left her children parcels of land described only by the names her family used. After she died, her two co-executors could not agree on what the names meant. The court read the will from where Greta sat and held that the names meant what her family had always taken them to mean.

Several members of the Gates family share the surname Gates. I will at times refer to them by their first names for clarity and convenience. I intend no disrespect in doing so.

I. Background

Green Bay is a small, picturesque community on the shore of the Atlantic Ocean in rural Lunenburg County. It is a quintessential Nova Scota vacation destination and has become one of the most sought-after and desirable sections of coastline in the province. The Gates family had owned land there for close to a century.

In 1910, two brothers, Joel and Haliburton Gates, bought a large lot at Green Bay. In 1920 they divided it and drew up a plan that split the whole into nine numbered lots — Joel took Nos. 1 through 5, Haliburton Nos. 6 through 9. Haliburton sold his share. Joel kept his.

Over the next four generations the family sold off pieces, nearly always from Joel Gates Lot No. 1. Lots 2 through 5 were left intact. Along the way the family acquired the adjoining parcel, bought by Joel's son Atwood in 1937, which everyone called the Huey lot. By 2011, when Greta made her will, she owned most of this land.

Greta took great pride in that land. She owned a great deal of it, she knew every parcel, and she spent her summers at Green Bay, taking in the views from her Airstream. The names in her will were the same names she had used throughout her lifetime.

II. Two Competing Readings

Greta died in 2014, leaving six children and a will she had worked on at length. She named two of them co-executors. They disagreed on what she meant, and that disagreement brought the family before the court on an application for interpretation.

The will gave away her land parcel by parcel, each described by a local name rather than a legal description. Two gifts were in dispute. To her son Alan, she left "the Joel Gates lot at Green Bay." To her son Thomas, she left "the Lewis Romkey lot at Green Bay." The Huey lot was not mentioned.

The applicant Darryn Gates argued that the "Joel Gates lot" was only the small remnant of Joel Gates Lot No. 1 that the family had never sold — about two acres, irregular in shape, part of it a shared roadbed, as a land surveyor's compilation later established. On that reading, the Huey lot was left out of the will and fell into the residue, to be divided among all six children.

The other executor, who we represented, read the will the way four of her five siblings did. The two names described the two large parcels that run side by side back into the woods. The "Joel Gates lot" was the Huey lot. The "Lewis Romkey lot" was the original Joel Gates lots 1 through 5. On that reading, every parcel Greta owned was accounted for, and nothing fell to residue.

III. The Armchair Rule

The will fell to be construed under the armchair rule. The court reads the will from the testator's position at the time she made it, in light of the circumstances she knew, to find the meaning she gave her own words.

When the court may look beyond the will to those circumstances is not settled. The traditional view admits them only where the language is ambiguous; the modern view reads the will against them from the start. In Murray Estate the Court of Appeal declined to resolve the debate, holding that where there is real uncertainty the court must consider the circumstances in any event.[1]

One clear limit applies either way. Evidence of the testator's circumstances is admitted to give meaning to the words she used; direct evidence of what she meant to say is not, save in narrow cases such as an equivocation, where a description fits two different things equally well.[2]

Greta's descriptions were ambiguous in exactly that sense. "The Joel Gates lot at Green Bay" read clearly enough until one tried to find it on the ground, where it could fit more than one parcel. Both parties agreed the court should look to the surrounding circumstances, and it did so, to settle which land each name described.

IV. The Evidence

The court had a substantial evidentiary record before it.

The solicitor who drafted the will testified and produced her file. She had met with Greta over many months and spent far more time on it than on most wills. When she worried the names might be too imprecise to identify the land, Greta was untroubled: these were the names the family used, and Alan would know where each lot was. The file also held an earlier draft that gave the Huey lot to Thomas by name — a line removed before signing, most likely because Greta saw she had named the same parcel twice.

Greta's own papers said the same thing in her own hand. She kept notebooks setting out her wishes and describing her land, and she had annotated a copy of the deed to the Huey lot:

This is deed for Hewy Lot at Green Bay Dad bought Then Grammie and Grandpa Gates gave Dad thier land right next know as the Lands of Lewis Romkey.

Two lots, side by side: the Huey lot her father bought, and the Lewis Romkey land beside it. Her 1986 will and a 1991 codicil had divided the land the same way. In her notebooks she drew the Green Bay land repeatedly as two long rectangles side by side, with the note "There are 2 lots." Five of the six children — all but the applicant — recalled their mother calling the Huey lot the "Joel Gates lot," and none of them had ever heard her use the surveyor's numbers for any parcel.

There was also a video of the family meeting at which the will was read. On it, the applicant Darryn Gates himself described the land as follows:

“There are two long strips of property down at Green Bay that run back in the woods, back where the gravel pit is.”

That is the respondent's interpretation, in the applicant's own words. His position then changed afterward. The court found it changed only once he learned that his brother Alan had agreed to sell the lot to his brother Thomas — a transaction of which the applicant Darryn had disapproved.

V. The Decision

Justice Boudreau accepted the majority of the family's reading. The "Joel Gates lot at Green Bay" was the Huey lot. The "Lewis Romkey lot" was the original Joel Gates lots 1 through 5, less the parcels sold over the years. Greta had not forgotten her largest piece of land or left it out by accident. She had called it what her family had always called it.

The Court was also candid about the cost of the application:

“Most unfortunately, this application has used resources from the estate, and energy from all of Greta Gates' children, that in my view would have been better spent elsewhere.”

While the matter of costs was resolved informally, the Court nonetheless made this point clear.

VI. Takeaways

1. The armchair rule is highly contextual.

Gates Estate shows the armchair rule at work in a practical way. The court was not trying to reconstruct Greta’s wishes in the abstract. It was trying to determine the meaning she attached to the words she actually used.

That is the key distinction. Greta’s notes, sketches, earlier testamentary documents, the drafting solicitor’s file, and the family’s settled usage all mattered because they helped explain her language. The will remained the governing document. The surrounding evidence gave meaning to its words.

2. The testator’s vocabulary is key.

The applicant’s argument rested on a very technical interpretation. There was an old plan of division. There were numbered Joel Gates lots. There was survey evidence showing that only a small remnant of the original Lot No. 1 remained.

But Greta was not drafting in the language of surveyors or title searchers. She was using the names by which she and her family knew the land. That is one of the important lessons of Gates. The legal title history was relevant, of course, but it did not displace Greta’s own vocabulary.

3. Coherence is often the strongest construction argument.

The respondent’s interpretation was not only consistent with the family’s recollection; it also made sense of the will as a whole.

On that reading, all of Greta’s land was accounted for. The two Green Bay gifts corresponded with the two long adjoining parcels she had repeatedly drawn and described. The Cabbage Field remained a separate cottage lot for Alan. The previously-removed reference to the Huey lot in the draft will also made sense: Greta had likely realized she had already dealt with that parcel under another family name.

The applicant’s interpretation created more problems than it solved. It left a major parcel out of the will, gave Alan a small and partly unusable remnant, and risked duplicating the Cabbage Field gift. A construction that produces those consequences is harder to reconcile with a careful testator who knew her land well.

4. The drafting solicitor’s file is essential evidence.

The solicitor’s file was not just background in this case. It showed Greta’s active involvement in her own estate planning, her confidence in the family names she used, and the evolution from early drafts to the final will. The deleted Huey lot clause was especially important because it helped answer the central question: had Greta forgotten the Huey lot, or had she already dealt with it by another name?

That is a practical takeaway. Drafts and deleted provisions may still provide helpful context, as they can help to explain why the final wording took the form it did.

5. The parties’ own prior statements are important.

The applicant’s position was also tested against his own conduct. At the family meeting after the will was read, he appeared to understand the lands in the same practical way as his siblings: two long strips running back toward the gravel pit. His position changed only after he learned of the proposed sale from Alan to Thomas.

The court did not decide the case on motive alone. But the timing still mattered. In a construction case, a changed interpretation may tell the court something about whether the proposed meaning reflects the testator’s language or a later litigation position.

6. Proportionality matters, too.

Justice Boudreau’s closing comment about the estate resources and family energy spent on the application should not be overlooked. Imperfect wording does not always justify the cost of a full litigation proceeding. Before bringing a construction application, we as counsel should ask not only whether an argument is available, but whether it is proportionate, evidentially sound, and worth the cost to the estate and the family.

VII. Conclusion

Gates Estate is not just a case about ambiguous property descriptions. It is a case about the difference between legal language and lived language.

Greta Gates knew her land. She had lived on it, named it, sketched it, and spoken about it in the language of her family. Her will used that same language. The court’s task was not to rewrite the will, but to understand the words as Greta used them.

The practical takeaway is that interpretation begins with the testator. The task is to assemble the record that allows the court to place itself, as best it can, in the testator’s position: the testator’s own documents, the drafting solicitor’s file, prior wills, historical usage, and the practical consequences of each competing interpretation.

In Gates, once that record was assembled, the answer was not found in technical title history. It was found in Greta’s own language, her own papers, and the coherent estate plan she left behind.

Notes

1. Re Murray Estate, 2001 NSCA 25: The court declined to resolve the debate, holding that where there is sufficient uncertainty the court must examine the surrounding circumstances in any event. The standard armchair formulation appears in Skerrett v. Bigelow Estate, 2001 NSSC 116.

2. Peach Estate, 2011 NSSC 74: Direct evidence of the testator's intention should not be admitted save in exceptional circumstances; extrinsic evidence of surrounding circumstances is admitted only to give meaning to the words used. On the equivocation exception, see Feeney's Canadian Law of Wills, 4th ed.