The Alberta Court of Appeal in Re: Strafford Estate, 2023 ABCA 99, recently considered a topic that has always been ripe for debate, namely when the court can consider “extrinsic” or outside evidence to determine the testator’s intention when rectifying a Will.
In Re: Strafford Estate, the court was asked to consider a bequest which formed part of the residue of the estate which directed the executor to purchase an annuity for one of the testator’s children. The child in question died shortly after the testator’s death, and a question emerged regarding whether the bequest to the deceased child had vested in them prior to their death such that it would now be payable to their estate, or whether the bequest was now payable to someone else.
The court in Re: Strafford Estate allowed itself to consider extrinsic evidence of the testator’s relationship with the child in question, as well as the addiction issues which affected the child, in ultimately concluding the testator would not have wanted the bequest to be payable to the child’s estate in the event of the child’s death. This decision was appealed by the deceased child’s estate in part on the grounds that it was improper for court to consider extrinsic evidence in determining the testator’s intention. The Alberta Court of Appeal ultimately dismissed the appeal, concluding there was no error on the part of the lower court judge in allowing extrinsic evidence to be considered.
The Alberta Court of Appeal uses the word “rectify” when describing the issue before the court, however I am not sure “rectification” accurately describes what was being asked in this circumstance. This does not appear to be the typical rectification situation, wherein the court is being asked to add or remove words from the Will to correct a drafting error, but instead seems to be an “interpretation” issue, wherein the court is being asked to determine what is to occur with a particular bequest. The distinction between “rectification” and “interpretation” is potentially important when considering the admissibility of extrinsic evidence, as historically there have been different rules regarding extrinsic evidence when rectifying a Will versus interpreting a Will.
The Ontario Court of Appeal in Rondel v. Robinson Estate, 2011 ONCA 493, confirms the longstanding principle that extrinsic evidence is not admissible when rectifying a Will, and that both the error and the testator’s intention must be deduced from a plain reading of the Will itself. This absolute ban on extrinsic evidence is not necessarily the case when interpreting a Will, for although there is a general bar on extrinsic evidence at first instance when interpreting a Will, with the court being asked to interpret the Will from a “plain reading” of the Will itself, there are a number of exceptions which allow the court to consider extrinsic evidence. For example, I recently blogged about the “armchair rule”, which directs the court to place itself in the position of the testator when trying to determine their intentions if they are unable to do so from a “plain reading” of the Will itself. To do so the court needs evidence about the testator’s life, including their relationships with their family as well as their assets, none of which would be readily apparent from the Will itself, such that from a certain perspective the armchair rule itself necessitates the consideration of outside extrinsic factors not apparent from the wording of the Will.
Thank you for reading.