Estates – Interpretation of a Will –
This appeal challenged the common law position on the
inadmissibility of direct extrinsic evidence of a testator's
intention in the face of an unambiguous will.
The testator, who owned property in Spain, England and Canada,
executed a will in 2002 intended to deal only with her European
property (the "2002 Spanish Will"). She
granted a life interest in her London flat to the Appellant, with
whom she had a long relationship. In 2005, the testator sent her
lawyer drafting instructions regarding a Canadian will (the
"2005 Canadian Will"). The instructions
related to the "entire residue of [her] estate". Her
lawyer drafted the will according to the instructions but did not
inquire to as the testator's previous wills, the location of
her assets or her significant relationships. The 2005 Canadian Will
included a general disposition clause and a standard revocation
clause, which revoked all previous wills. The lawyer reviewed the
will, clause by clause, with the testator prior to its
In 2006, the testator revised the 2005 Canadian Will to make a
bequest of $1 million to the Appellant (the "2006
Will"); no further amendments were made. When the
testator died, her lawyer, who was unaware of the 2002 Spanish Will
or the testator's European assets, distributed the Canadian
assets per the 2006 Will. The lawyer subsequently learned of the
2002 Spanish Will and the European assets.
The Appellant and the testator's lawyer brought applications
for the interpretation and rectification of the 2006 Canadian Will,
which had already been probated. Both applications were supported
by affidavit evidence as to the testator's intention that the
2006 Will would deal only with her Canadian property and was not
intended to revoke the 2002 Spanish Will. The Appellant deposed
that the testator did not intend to revoke the 2002 Spanish Will
and that the 2006 Will did not reflect her intentions and was not
approved prior to execution.
The application judge, after reviewing the common law position
on the rectification of wills, dismissed the applications. To allow
the applications would give the court the power to intervene and
rectify an unambiguous will that was reviewed and approved by the
testator on the basis of third party affidavit evidence that the
testator did not mean what she said.
The Court of Appeal found the application judge did not err by
holding that the affidavit evidence as to the testator's
intentions was not admissible.
The court upheld the general common law rule that the
testator's intentions must be determined on the basis of the
words in the will rather than direct extrinsic evidence of intent.
While extrinsic evidence related to the circumstances of the
testator and the making of the will may be admissible, the
affidavit evidence filed in support of the applications exceeded
the scope of admissible evidence. Allowing such evidence would
introduce uncertainty and increase estate litigation. Disappointed
beneficiaries could challenge a will based on the belief that the
testator's intentions were different than those expressed in
the will. To admit this evidence, other than in circumstances where
there is an equivocation in a will, would raise issues of
credibility and reliability. In this case, the words of the 2006
Will were clear.
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