Interpretation of Wills – An Example of When Extrinsic Evidence Is Admissible
In DiNicola v. Tingley 2011 CarswellOnt 8038, the Ontario Superior Court of Justice recently considered the admissibility of extrinsic evidence in the context of a Will interpretation application.
In the case, the Deceased left a Will which provided for the distribution of the residue of her Estate, in part, amongst three named beneficiaries: her late husband’s relative (50% share of the residue), her brother (20%), and her sister (10%). The Will provided that if any of the named residuary beneficiaries “should predecease me then I shall direct his or her share designated as aforestated shall be divided and distributed among the survivors of same proportionately as between them.”
As two of the named residuary beneficiaries (her late husband’s relative and her sister) had predeceased, the Court was asked to interpret what was meant by “the survivors of same.” Specifically, the Court was asked to resolve the ambiguity caused by the wording – the reference to "the survivors of same" could refer to the survivor(s) of the three residuary beneficiaries or, alternatively, could refer to the descendants of any predeceased residuary beneficiaries (e.g. the descendants of her late husband’s relative would share her 50% interest in the residue).
A significant item of extrinsic evidence was put before the Court: a document prepared by the Deceased in January 2007, which noted that her late husband’s relative had died and that "her share to be divided among her three living children." The note went on to list the names and addresses of the children.
An investigation of the file of the solicitor who prepared the Will (who himself had predeceased) did not provide any further assistance in interpreting the intention of the Deceased.
In its decision, the Court noted that where there is ambiguity with respect to certain words in a Will, the court will generally apply the "armchair" rule – i.e. the Court is asked to sit in the armchair of the testator and determine just what exactly the words mean in light of the surrounding circumstances at the time of making the Will. This analysis permits reference to indirect extrinsic evidence of surrounding circumstances at the time of making the Will. Further, the Court noted that were an “equivocation” occurs (i.e. where the words of a Will, either when read in the light of the whole Will or when construed in the light of surrounding circumstances, apply equally well to two or more persons or things), direct and indirect evidence of the testator’s actual intention may also be admitted.
In reviewing the Will, the Court found that the words “survivors of same” could equally mean the surviving residuary beneficiaries or the descendants of a predeceased residuary beneficiary. As this constituted an equivocation, the January 2007 note was admissible as evidence of the Deceased’s intention that the share of a predeceased residuary beneficiary should pass per stirpes to his or her descendants. In light of the January 2007 note, the Court held that the descendants of the predeceased residuary beneficiaries were entitled to share in the residue of the Estate – the late husband’s relative’s descendants were entitled to her 50% share of the residue and the late sister’s descendants were entitled to her 10% share of the residue.
Thanks for reading,
Saman M. Jaffery