There have been many cases in the courts involving the interpretation of a last will and testament. Most often they are battles between beneficiaries for a bigger piece of the pie. Sometimes the fault is the language used in the will and sometimes a clause found in the will is not in the right place and does not make sense because of that. Nineteenth century courts approached the problem from a grammar point of view. What is the ordinary and grammatical meaning of the words? What does that clause mean when it is after the residue clause in the will? These courts proceeded on the assumption that, in construing a will, it is not what the testator meant but the meaning of the testator’s words that matters. This approach is basically applying the meaning that a philologist would place on the words or clauses of a will. As one judge has colourfully condemned this approach: “In order to discover the meaning the testator intended, you will not get much help from a dictionary. It is very unlikely that he used a dictionary, and even less likely that he used the same one as you.”

The modern approach is intention-driven both in regard to the language used and in regard to a situation when a clause in a will is in the wrong place. The Supreme Court of Canada has established that a court must look to the intention of the testator and the surrounding circumstances at the time the testator executed the will. The law is set out in the following quotation: “Each Judge must endeavour to place himself in the position of the testator at the time when the last will and testament was made. He should concentrate his thoughts on the circumstances which then existed and which might reasonably be expected to influence the testator in the disposition of his property. He must give due weight to those circumstances in so far as they bear on the intention of the testator. He should then study the whole contents of the will and, after full consideration of all the provisions and language used therein, try to find what intention was in the mind of the testator. When an opinion has been formed as to that intention, the Court should strive to give effect to it and should do so unless there is some rule or principle of law that prohibits it from doing so.”
“Surrounding circumstances” has been interpreted to mean evidence consisting of the character and occupation of the testator, the amount, extent and condition of the testator’s property and the number, identity and general relationship of immediate family