In the construction of wills there is a presumption against intestacy. When the court is endeavouring to apply this rule, consideration should be given to what type of evidence it can admit with respect to the testator’s intention.
Where there is an ambiguity in a will and the need for its interpretation arises, the analysis centers on determining the subjective intent of the testator. This is accomplished by the court putting itself in the place of the testator at the time the will was made, considering the circumstances that then existed and that might reasonably be expected to influence the testator in the disposition of property. The court should also study the contents of the will, try to find the testator’s intention and give effect to it.
Direct evidence of a testator’s intention is not admissible, the rationale being to preserve the role of the written will as the primary evidence of intention. An exception to this is in the case of an equivocation. The principle simply put is that there is an equivocation where the words of the will apply equally well to two or more persons or things. In such a case, extrinsic evidence of intention may be admitted to resolve the equivocation. DiNicola v. Tingley is an instance of where an equivocation was found. The Deceased left a will that provided for the distribution of the residue of her estate, in part, amongst three named beneficiaries. 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.” The Court found that the words “survivors of same” could equally mean the surviving residuary beneficiaries or the descendants of a predeceased residuary beneficiary. This constituted an equivocation, and the Court accepted for consideration direct extrinsic evidence.
If no intention can be garnered from the language of the will and the admissible extraneous evidence, the court must declare the will void for uncertainty. One exception to this is where the uncertainty relates to a charitable beneficiary. In such a case, the court may apply the cy-près doctrine and direct that the property be given to a similar charitable purpose.
Thanks for reading and have a great day,
Other blogs on this subject that may be of interest are:
Interpretation of Wills – a recent case where direct evidence was not permitted