Interpretation of Wills and Extrinsic Evidence

Traditionally a Will is to be interpreted without consideration of extrinsic evidence. The Will is taken as being the best evidence of the testator's intentions and, similar to the parole evidence rule in contract, extrinsic evidence will generally not be considered in deciding what the testator meant.

In some cases the prohibition on extrinsic evidence can work an apparent hardship. For example, a testator may have left quite explicit verbal instructions with her trustees but those instructions are not admissible for construing her Will.

For example, in Reishiska v. Cody, 1967 CarswellSask 97 (C.A.) the testator made a Will in which she bequeathed her real estate to her niece and nephew on the condition that they arrive in Canada within 15 years of her death. The niece and nephew arrived in Canada, but not to stay, only to visit. Evidence that the testator intended that the niece and nephew be permanent residents and not just visitors was inadmissible because it attempted to establish a contrary intention to that determined by giving the words of the Will their ordinary and natural meaning.

An exception to the bar on extrinsic evidence exists where the Will is ambiguous but such did not apply in Reishiska. The language of the Will was clear even if contrary to the actual intention of the testator. To admit the evidence would have created uncertainty where no uncertainty existed in the words of the Will.

The very recent Court of Appeal decision in Rondel v. Robinson Estate, 2011 ONCA 493 considers, and upholds, the position in Canada that direct extrinsic evidence of a testator's intention in the face of an unambiguous Will is inadmissible.

The Court noted that allowing extrinsic evidence was problematic in that
"[f]abrications or fantasies of the "he really meant me" or "he always said I would get the house" variety could be advanced much more easily than they can be under the present law.". The Court held certainty was a crucial consideration in Estate matters and that only where there was uncertainty in the Will as written could extrinsic evidence be adduced.

The Court held "where the words of the will ... apply equally well to two or more persons or things ... extrinsic evidence of the testator's actual intention may be admitted ..." . The traditional prohibition on extrinsic evidence in interpretation of a Will remains.