Court of Appeal Confirms Common Law Regarding Use of Extrinsic Evidence in Interpreting Wills

The Ontario Court of Appeal was recently asked to review and, in effect, revise the common law concerning the use of extrinsic evidence for the purpose of interpreting the intention of a testator.  In Rondel v. Robinson Estate, at issue was whether evidence could be led to effectively amend unambiguous terms of a will. 

The testator owned property in Spain as well as in Canada. In 1992 she executed a will in Spain dealing with her Spanish property.  In 1996 she executed a will in Ontario.  The latter will contained the usual provision revoking all previous wills.  A beneficiary applied to an Ontario court for an order setting aside the revocation clause in the 2006 will and the addition of wording excluding the Spanish property from that will.  The basis for the application was an allegation that the Ontario will was only intended to deal with Canadian property.  Affidavit evidence was led of the solicitor who prepared the Ontario will and met with the testator for that purpose.  The solicitor’s evidence was to the effect that the testator gave no consideration to the revocation clause and, in his view, intended only to deal with her Canadian property in that will.  The Court found that there was no ambiguity in the wording of the will and the issue became whether extrinsic evidence could be used to alter otherwise unambiguous terms.

The lower court and the Court of Appeal both found against the applicant beneficiary, holding that extrinsic evidence could not be introduced to alter clear terms of a will, upholding a long line of jurisprudence.  The Court of Appeal held that extrinsic evidence will be allowed to aid in the construction of a will, in particular with respect to the facts and circumstances surrounding the making of the will, which can of themselves raise an ambiguity.  However, where such evidence goes beyond the facts and circumstances of the will and purports to establish the intention of the testator, as the court found here, it becomes inadmissible.  The policy reason behind this, of course, is that if evidence of intention was permitted, there would always be an opportunity for disappointed beneficiaries to try to establish an alternative intention to the clear wording of the testator, a situation the courts actively discourage.

2 Responses to “Court of Appeal Confirms Common Law Regarding Use of Extrinsic Evidence in Interpreting Wills”

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