Equivocation and the Admissibility of Extrinsic Evidence in Will Interpretation
I recently came across the decision in Campbell v Campbell, 2017 ONSC 2139. This is a recent decision with respect to two motions brought within an application for the interpretation of the last will and testament (the “Will”) of the late Howard Campbell (the “Deceased”). While the decision focuses on the various procedural matters at issue in the motions rather than the interpretation question at issue in the application, the decision also provides a brief summary of the facts which raised an interesting question for me regarding the admissibility of extrinsic evidence.
The interpretation concerns the Deceased’s Will, which contains three seemingly incompatible bequests, as follows:
- Paragraph 3(b) of the Will directs the estate trustee “to pay my debts, funeral and testamentary expenses, and to transfer the residue of my estate to my wife, if she survives me for a period of thirty days, for her own use absolutely”;
- Paragraph 3(c) of the Deceased’s Will directs the estate trustee “to deliver to my wife, for her use and enjoyment for life, all articles of personal domestic and household use or ornament belonging to me at the time of my death…and on her death, to divide all such articles among my children…”; and
- Paragraph 3(d) of the Will directs the estate trustee “to divide the residue of my estate equally between my wife (if she survives me for a period of thirty days) and my children, Kim, Howard, Rory, Cherie, Gina, Casey and Patrick, if then alive…”.
There appear to be four possible interpretations of the Deceased’s Will based on the above clauses:
- One hundred percent of the estate is left to the Deceased’s wife;
- The Deceased’s wife is given a life interest in personal property, which is later to be divided amongst the Deceased’s children;
- Fifty percent of the Deceased’s estate is to be left to his wife, and the other fifty percent is to be divided amongst the Deceased’s children; or
- The Deceased’s wife and the Deceased’s children are each to receive one-seventh of the estate.
In interpreting wills, Courts must first look to the language of the will to ascertain whether the testator’s intention can be discerned from the will itself. If the Court is unable to determine the testator’s intention from the will alone, it may then consider the surrounding circumstances known to the testator at the time that he or she made his or her will.
The surrounding circumstances that may be considered include only indirect extrinsic evidence, and not direct extrinsic evidence. Indirect extrinsic evidence consists of such circumstances as the character and occupation of the testator, the amount, extent and condition of his property, the number, identity, and general relationship to the testator of the immediate family and other relatives, the persons who comprised his circle of friends, and any other natural objects of his bounty. Direct extrinsic evidence would include, for example, instructions given by the testator to his solicitor in respect of the preparation of his will, or direct evidence from other third parties about the testator’s intentions.
As discussed in the decision of Rondel v Robinson Estate, 2011 ONCA 493, an exception to the general rule that direct extrinsic evidence is not admissible is in circumstances where there is an “equivocation” in the will, meaning that the words of the will in question apply equally well to two or more persons or things. Equivocation should not be equated with either ambiguity or mere difficulty of interpretation
One of our recent blog posts discusses a case where extrinsic evidence was not permissible. In that case, the court found that the language of the will in question was not equivocal, and accordingly, extrinsic evidence was not admitted. However, in the facts described above, it appears that the Deceased’s Will may provide an example of a situation where there is an equivocation, given that there seem to be four alternative interpretations.
As further discussed in the Rondel v Robinson decision, when direct extrinsic evidence, such as third party evidence of a testator’s intentions are admitted, this can give rise to reliability and credibility issues. Accordingly, it is important that the admissibility of direct extrinsic evidence be restricted, and permitted only when the rules of interpretation and construction are insufficient to interpret equivocal language.
Thanks for reading,
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