Saskatchewan Estate Litigation Update: The Estate of Fedyk v Karmarznuk, 2025 SKKB 50

October 3, 2025
Direct Evidence | Indirect Evidence | Latent Ambiguity | Patent Ambiguity | Residual Clause | Testamentary Interpretation

The recent Saskatchewan King’s Bench decision in The Estate of Fedyk v Karmarznuk (“Fedyk Estate”) offers a helpful overview of what evidence a Court is allowed to consider when interpreting a will.

Fedyk Estate reminds us of two distinct types of evidence which may be available:

  1. Indirect evidence of the testator’s intention: This is also known as “armchair” evidence. It is evidence of external context that the testator would have known at the time of a will. Examples might include things like the occupation of the testator, the amount and condition of their property, the number and identity of their relatives, the persons who comprised their friends, etc. However, such indirect context is not to include “direct” evidence of what the testator said was their intention in relation to their bequests;
  2. Direct evidence of the testator’s intention: This is evidence of what the testator actually said was their intention in relation to their testamentary gifts. It may include statements of the testator’s reasons for using the language that they used, or express evidence as to what the testator said to their solicitor.

Fedyk Estate said that “indirect evidence” is admissible in all cases of ambiguities in a will. However, “direct extrinsic” evidence is only admissible where there is a latent ambiguity. A latent ambiguity is where the wording seems straightforward on its face but becomes ambiguous only when it is applied to specific facts. An example would be a gift that said “I give my house to my son” but then when the context is applied to such words, it becomes clear that the Court that the testator had multiple sons.

The Court explained why direct evidence was restricted to situations of latent ambiguities. Only in those situations was indirect evidence (i.e. surrounding context) insufficient to find the testator’s true intention. In situations of a latent ambiguity, the uncertainty could not be resolved by surrounding indirect evidence of context. In such circumstances, the confusion required actual recourse to the testator’s own “direct” statements, to resolve the ongoing uncertainty. Examples include situations where the surrounding factual context shows that two beneficiaries share the same name, that property was inaccurately described, or that property no longer existed etc.

Background:

The factual background in Fedyk Estate included the below:

  1. The court application arose out of the estate of Kenneth Joseph Fedyk (“Estate”). The executor of the Estate had applied in court to seek direction in interpreting the residual clause of Last Will and Testament of Kenneth Joseph Fedyk, dated December 12, 2023 (“Will”);
  2. The residual clause read as follows:

I DIRECT my Executor and Trustee deliver the rest and residue of my said Estate to my daughter, MELONIE DAWN KARMARZNUK, for her sole use and benefit absolutely. PROVIDED HOWEVER, I DIRECT my Executor and Trustee to purchase an annuity for my said daughter, which annuity will provide for an annual income in the amount of Twenty-Four Thousand ($24,000.00) Dollars per year [Two Thousand ($2,000.00) Dollars per month], and which annuity will provide such income for as long as my said daughter shall live, or until all funds have been disbursed, whichever first occurs; such annuity shall begin as soon as possible after my death and shall continue to be payable monthly thereafter. Such purchase from a company that provides for annuities, shall be made in the discretion of my Executor and Trustee. I DECLARE that my said daughter shall not be allowed to have the value of the said annuity in lieu thereof; and IN CASE of the happening of any act or event whereby the said annuity or any part thereof, if belonging to my daughter absolutely would become vested in or charged in favour of any other person or persons, the said annuity shall cease to be payable to my daughter and shall thenceforth form part of the rest and residue of my Estate.

  1. The Will also included the following provision, which stated that on the death of Melonie the Estate was to be divided into two equal shares and given to each of Kelsey Fedyk and Karley Karmarznuk:

UPON the death of my daughter, MELONIE DAWN KARMARZNUK, I DIRECT my Executor and Trustee divide the rest and residue of my said Estate into two (2) equal shares and deliver one (1) such share to each of my grandchildren, KELSEY FEDYK and KARLEY KARMARZNUK, or the survivor, for their sole use and benefit absolutely.

  1. The residue of the Estate consisted of some $900,000 or so;
  2. The executor argued that the Will contained an ambiguity and that extrinsic evidence should be considered to interpret the testator’s intention;
  3. Melonie argued that the Will’s language was clear and that Melonie should receive both the annuity and the residue. Melonie objected to the use of extrinsic evidence when interpreting the residual clause.
Issue:

This case comment focuses on the below issues which the Court considered:

  1. Issue 1: What is the difference between a patent versus a latent ambiguity?
  2. Issue 2: When may direct extrinsic evidence be appropriately used to interpret a will?
  3. Issue 3: What was the proper interpretation of the residual clause in this specific situation?
  4. Issue 4: How could this ambiguity have been avoided?
Decision in Fedyk Estate:
  1. Issue 1: What is the difference between a patent versus a latent ambiguity?

The Court determined that the ambiguity in the residual clause was a “patent” ambiguity. A patent ambiguity is an uncertainty that is evident on the face of a will and does not require context or application to specific facts in order to reveal the uncertainty.

Here, this ambiguity was “patent” in the sense that the uncertainty was evident immediately on the facial terms of the Will. The Court noted the below:

[15] Here the question of interpretation arises because the language of the Will itself is internally contradictory. The uncertainty here is not created only once surrounding circumstances are known. This Will does not contain a provision which seems obvious and straightforward on its face but, upon understanding the facts aside from the Will, is seen to create confusion. We are not faced here with a situation where the same gift is provided to more than one person or given to two people with the same name, each laying a competing claim to a bequest. Nor has a particular item gifted by the Will been previously disposed of by the testator whilst a similar property owned by the testator remains unmentioned.

The residual clause gave rise to an ambiguity as two apparently conflicting directions were seemingly imposed. First, the clause directed that Melonie would receive the entire residue (which suggests that the entire residue was hers to do with as she chose, full stop). However, inconsistent with any potential unconditional gift of the entire residue to Melonie, the clause then imposed further conditions. It said that there must be an annuity created such that a minimum monthly and yearly income will be guaranteed to Melonie for her lifetime, and the remainder in the annuity would go to the testator’s grandchildren:

[47] When considering the provisions in issue, a complete gift of the residue is given to Ms. Karmarznuk. Then follows a diminishment of the comprehensiveness of the gift of residue by virtue of the direction that an annuity is to be established. Following this is a provision which appears to put the annuity back into residue if it becomes vested in or charged in favour of any other person or persons. A presumption appears to exist therefore that there will be some residue remaining after Ms. Karmarznuk’s death. That is subsequently identified by directing it to be provided by way of a gift to the deceased’s grandchildren after Ms. Karmarznuk’s death. This too is potentially contrary to the direction of the entirety of the residue going to Ms. Karmarznuk.
…
[50] This group of provisions create confusion as they express competing priorities. Ms. Karmarznuk is to receive the entirety of the residue of the estate, but a sizeable portion of it is nonetheless to be used to fund the purchase of an annuity paying her $24,000 per year at the rate of $2,000 per month for life. There is also direction that the residue of the estate is to go to the testator’s grandchildren.

  1. Issue 2: When may direct extrinsic evidence be appropriately used to interpret a will?

The Court noted that prior judicial decisions had imposed restrictions on which situations permitted the use of indirect extrinsic evidence, and, which also permitted the use of direct evidence of the intent of the testator. The Court concluded that such prior case law directed that direct evidence of intention was only permitted when a latent ambiguity is present:

[16]               In Moodie (Estate) v Lakeview United Church, 2018 SKQB 69[Lakeview Church], Justice Elson noted the difference between patent and latent ambiguities is significant because direct extrinsic evidence of testamentary intention should only be admitted in the case of equivocations or latent ambiguity. The same conclusion was reached by Justice Vertes in Bruce Estate, Re, 1998 CarswellYukon 36 (WL) (YKSC).

…

[40] Thus only when a latent ambiguity is found is direct extrinsic evidence admissible. The rationale for this has been noted in various authorities. In Re Estate of Marjorie Rose Thompson, 2005 NLTD 88, 741 APR 298, Justice Barry noted the danger:

15 I do not agree with the submission of counsel for Ms. Godo that the armchair rule means this Court, in considering the surrounding circumstances at the time Marjorie Thompson made her Will, should admit direct parol evidence as to her intention. To take this approach would, as noted by Middleton J. in v. Walker, 1923 CanLII 458 (ON SC), [1924] 1 D.L.R. 719 (Ont. Div. Ct.), place the requirement that wills be in writing “in danger of judicial repeal”.

The Court explained why direct evidence was restricted to situations of latent ambiguities. Only in those situations was indirect evidence (i.e. surrounding context) insufficient to find the testator’s true intention. In situations of a latent ambiguity, the uncertainty could not be resolved by surrounding indirect evidence of context. In such circumstances, the confusion required actual recourse to the testator’s own “direct” statements, to resolve the ongoing uncertainty. Examples include situations where the surrounding factual context shows that two beneficiaries share the same name, that property was inaccurately described, or that property no longer existed etc.

The Court held:

[43]   Direct evidence of a testator’s intention is only to be admitted when it is truly necessary. Otherwise the Court is at risk of imposing its view of the testator’s wishes rather than the testator’s own. The situations calling for it involve a latent ambiguity because that is when the nature of the confusion requires it. It is necessary because indirect evidence and the language of the will itself are not sufficient to clear up the type of confusion presented so as to find the testator’s true intention. Evidence of the testator’s intentions is properly admitted at that point because without it there will be continuing uncertainty. Where two beneficiaries have the same name, where property is misdescribed or has already been disposed of and where property is gifted more than once are some examples. This is not intended to be an exhaustive list.

We can take the guidance offered by Fedyk Estate and distill it into the below rules:

  1. Patent ambiguity: Where a will’s provision is ambiguous on its face, you should adduce indirect extrinsic evidence (i.e. evidence of surrounding context). Examples of such relevant surrounding context may possibly include things like:
  1. The character and occupation of the testator;
  2. The amount, extent and condition of the testator’s property;
  3. The number, identity and general relationship to the testator of the immediate family and other relatives;
  4. The persons who comprised the testator’s circle of friends; and
  5. Any other natural objects of the testator’s bounty.
  1. Latent ambiguities: Where a will’s provision is ambiguous only when it is applied in a given situation, then you can adduce direct evidence of intention. Examples would include evidence from the testator’s own lips as to why they used the language they did, or direct instructions to the drafting solicitor.
  1. Issue 3: What was the proper interpretation of the residual clause in this specific situation?

Because this was a patent ambiguity, the Court followed prior case law and did not permit the use of direct extrinsic evidence of the intention of Kenneth Joseph Fedyk (“Deceased”). The Court held as follows:

[48]          Given the patent ambiguity that exists here, indirect extrinsic evidence is clearly to be considered in this situation. Direct evidence of the testator’s intention is not, however, admissible as it is not necessary to resolve the nature of the confusion. Relying on it risks the imposition of the Court’s view of intention rather than the testator’s.

…

[61]        …There is a patent ambiguity on the face of the Will. Indirect extrinsic armchair evidence was properly tendered and is admissible to resolve the confusion. The Will does not contain a latent ambiguity and therefore Mr. Fedyk’s instructions to his counsel and statements of intent including the reasons behind some of his instructions are not admissible. They are not necessary nor helpful in resolving the ambiguity here.

The Court held that it should employ the “armchair rule” and put itself in the position of the Deceased at the point when they made a will, and, from that vantage point, read a will in light of the surrounding facts. Only facts and circumstances that existed when a will was made should be considered by a court.

The Court used indirect extrinsic evidence to ascertain that the Deceased intended to purchase an annuity out of the residue to ensure that Melonie received $24,000 per year at the rate of $2,000 monthly for life. The amount exceeding what is required to fund the income for life, can forthwith be Melonie’s to do with as she desires. The Court followed the below reasoning process:

[51]        The indirect extrinsic evidence of significance here is that Ms. Karmarznuk is the testator’s only child. He had other family members at the time of his death including sisters, grandchildren, a great grandchild and a brother-in-law. They were all provided for specifically in various provisions of the Will. The provision in question was a stand-alone provision directed at the benefits he wished to bestow on his only daughter. The second sentence of the provision under consideration makes it clear he had in mind at least one aspect of the benefit being to provide for her monthly and annually rather than it being given all as a lump sum payment.

[52]          Based on the structure of the Will itself, the indirect external evidence of the relationships the testator had to the beneficiaries, the size of the estate and the language used in the provision at issue and the rest of the Will, the testator’s intention was for Ms. Karmarznuk to receive the residue of the estate but for an amount to be used to purchase an annuity. The annuity is to be in an amount that it ensures she will receive $24,000 per year at the rate of $2,000 monthly for life.

[53]          I find it is established that the testator desired to ensure that, come what may, an annual income would continue for the lifetime of Ms. Karmarznuk in the amount of $2,000 per month. Ms. Karmarznuk is his daughter and he wanted her to receive the lion’s share of his estate but also be provided for a base amount for as long as she lives. In achieving this goal, he approached it from two angles: a portion being a lump sum and a portion ensuring that an investment vehicle was arranged whereby she would be able to count on an income for her lifetime. Fortunately, both can be accomplished given the size of the estate. The amount exceeding what is required to fund the income for life can be hers to do with as she desires. These are not opposing concepts. They are readily reconciled.

…

[64]           While one may have doubts as to Mr. Fedyk’s understanding of how much was required to purchase such annuity, the estate, even after taxes are paid, will have a significant amount remaining, that is the core of his intentions as gleaned from the surrounding evidence and the language of the Will itself.

As a result, the Court interpreted the residual clause to provide for the following:

  1. An annuity is to be purchased to provide Melonie $2,000 per month of reliable income for life from the residue of the Estate;
  2. Once all specific bequests and other estate expenses are take care of, and the annuity was purchased, the remainder of the residue would become Melonie’s to do with as she so decides;
  3. If “any act or event” happens whereby the said annuity or any part thereof becomes vested in or charged in favour of any other persons than Melonie, then the annuity shall cease to be payable to Melonie and shall thenceforth form part of the rest and residue of the Estate;
  4. The residue, being any remaining corpus of the annuity, was to go to the Deceased’s granddaughters upon Melonie’s death
  1. Issue 4: How could this ambiguity have been avoided?

It is useful to reflect on how this drafting ambiguity could have been prevented. The Court noted that this ambiguity could have been avoided had the Deceased directed at the beginning of the residual clause that an annuity was to be purchased out of the residue first, but that the remainder of the residue, if any, was to go to Melonie.

Instead, the Deceased had used unclear language by gifting the entire residue to Melonie first, but then going on to carve out a subset of funds from such gift which would be used to buy the annuity.

Costs order:

The Court found that the executor had acted reasonably in bringing this application. Facing a potentially unclear Will, the executor had been correct to seek judicial direction prior to distributing the Estate. The Court held that that all parties’ legal costs should be paid out of the Estate and not paid by any one party personally:

[66]        I am not in agreement in the least that [the executor] Mr. Church is to be criticized for his application, which arose from the circumstances Mr. Church was saddled with, through a confusingly drafted will. It was appropriate for him as executor to bring this forward to the Court. The issue was appropriately left to be resolved here.

Conclusion:

Fedyk Estate offers the below lessons for practitioners:

  1. If a perfectly straightforward will is presented to the Court, which has no patent ambiguity on its face and no latent ambiguity beneath its surface, there is no practical need to resort to extrinsic evidence so as to properly interpret it;
  2. Where there is a patent ambiguity, a party may only adduce indirect extrinsic evidence (i.e. evidence of surrounding context). Examples of such surrounding context may include things like:
  1. The character and occupation of the testator;
  2. The amount, extent and condition of the testator’s property;
  3. The number, identity and general relationship to the testator of the immediate family and other relatives;
  4. The persons who comprised the testator’s circle of friends; and
  5. Any other natural objects of the testator’s bounty.
  1. Where there is a latent ambiguity, then a party is also entitled to introduce direct evidence of intention. Examples may include direct evidence from the testator’s own lips as to why they used the language they did, or direct instructions to the drafting solicitor.
  2. Executors should err on the side of caution when confronted with ambiguous terms. They should consider applying for judicial direction to resolve such ambiguity, rather than unilaterally going ahead and distributing the estate in the face of unclear wording.