Considering the Admissibility of Extrinsic Evidence on Will Construction Applications

July 24, 2009 Hull & Hull LLP Estate Planning, Executors and Trustees, Litigation Tags: , , 0 Comments

Decore Estate, a recent decision from the Court of Queen’s Bench of Alberta, explored the issue of the admissibility of extrinsic evidence in a proceeding to determine the appropriate interpretation of a testator’s will.  

The application involved a dispute over the proper construction of the deceased’s last will and testament and codicil. In particular, there was an issue of the value of an asset that the testator had bequeathed to two beneficiaries and the appropriate timing of the bequest. In advance of this application the court was asked to determine what types of evidence would be admissible. The proposed categories were armchair evidence (which establishes a context for the terms of the testator’s will) and intention evidence (which included “hearsay” reports of the testator’s words). 

The court found that the law as it related to extrinsic and arm chair evidence was relatively clear and could be summarized by the following principles:

a)      When the terms of a testamentary document are clear and unambiguous, no further evidence beyond the document is admissible;

b)      Where there appears a legitimate issue of the proper interpretation of a testamentary document, armchair and intention evidence is admissible. However, the court found it was not sufficient for there to simply be competing interpretations – the interpretations must all be plausible;

c)      Where it appears the testator made a mistake of fact (but not law), both armchair evidence and intention evidence can be adduced. 

The court further held that once it had been established that the two categories of evidence were admissible, the issue of whether individual pieces of evidence were admissible was one to be determined at trial. At that time, the relevant inquiry would be whether the evidence is probative, necessary, and reliable. 

In this case, the court determined that armchair evidence and intention evidence could be adduced because there was a reasonable dispute about the proper construction of the deceased’s testamentary documents, the interpretations being advanced were all plausible, and the proposed evidence, if accepted, would advance the enquiry the court was required to undertake. 

Have a great weekend!

Megan F. Connolly 

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