Direct extrinsic evidence of a testator’s intention in the face of an unambiguous will is inadmissible

Rondel v. Robinson Estate, 2011 ONCA 493 considers, and upholds, the common law position in Canada that direct extrinsic evidence of a testator's intention in the face of an unambiguous will is inadmissible:

[27]         The law properly regards the direct evidence of third parties about the testator's intentions to be inadmissible. There would be much uncertainty and estate litigation if disappointed beneficiaries like Dr. Rondel could challenge a will based on their belief that the testator had different intentions than those manifested in the will.

[28]         An apt example is Reishiska v. Cody, 1967 CarswellSask 97 (C.A.). In that case, the testator made a will in which she bequeathed her land to her niece and nephew on the condition that they arrive in Canada within 15 years of her death, or else the land would be transferred absolutely to the defendant. The niece and nephew arrived in Canada, but the defendant sought to introduce evidence that the testator intended that the niece and nephew be landed immigrants or permanent residents, not just visitors. The evidence 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. To admit the evidence would have created uncertainty where no uncertainty existed in the words of the will.

[29]         An exception to the general rule excluding direct extrinsic evidence of intent in a court of construction arises where there is an "equivocation" in the will. The principle is set out in Feeney, The Canadian Law of Wills: Volume 2 Construction, 2d ed. (Toronto: Butterworths, 1982), at p. 56:

There is an equivocation only where the words of the will, either when read in the light of the whole will or, more usually, when construed in the light of the surrounding circumstances, apply equally well to two or more persons or things. In such a case, extrinsic evidence of the testator's actual intention may be admitted and will usually resolve the equivocation.

[30]         In Re Bruce Estate (1998), 24 E.T.R. (2d) 44 (Y.S.C.), the court held that the term "equivocation" is a term of art that has a special meaning in law. The court cautioned against simply equating it with either ambiguity or mere difficulty of interpretation, otherwise there would be no need for rules of interpretation and construction.

[31]         The affidavits of Mr. Silverman, Ms. Budi and Dr. Rondel do furnish evidence of some of the surrounding circumstances in this case. Before drafting her Will, Mr. Silverman did not ask the testator about her previous Will, did not review her assets and their location with her, and did not canvass with her the people who she might consider including in the Will. Nor, did she offer any of this information to Mr. Silverman. Taken together, this evidence might give rise to speculation that the testator did not turn her mind to the effect the 2006 Canadian Will would have on the 2002 Spanish Will and the European assets. However, when considered in the light of all the surrounding circumstances including this evidence, there is not the slightest equivocation in the testator's 2006 Canadian Will. The words of the 2006 Canadian Will are clear. As the application judge found, this was not a case about a typographical error, a solicitor's misunderstanding of the testator's instructions or a solicitor's failure to implement the testator's instructions. Rather, the solicitor drafted the testator's Will in accordance with her instructions to deal with the "entire residue of my estate", and she reviewed and approved of the language in the Will before executing it.

[32]         The admissible evidence of the surrounding circumstances cannot support the inference that the testator did not intend to revoke the Spanish Will. Mr. Silverman and Dr. Rondel need to rely on the direct evidence of the testator's intent in their affidavits, and urge this court to expand the common law to allow them to do so.

[33]         It has been previously suggested that such evidence should be admitted to aid the interpretation of wills. The court's attention was drawn to a 1982 report of the Law Reform Commission of British Columbia that recommended eliminating the exclusionary rules of evidence and admitting all evidence in aid of interpretation that meets the normal evidentiary test of relevance. The recommendation was not accepted.

[34]         I prefer the different view taken by the Succession Law Reform Project reporting to the British Columbia Law Institute in a 2006 Report:

The view that has prevailed in the Succession Law Reform Project, however, is that removing all restrictions on admission of extrinsic evidence of intent would allow excessive scope for attempts to secure an interpretation contradicting the actual terms of the will. Fabrications 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 Testate Succession Subcommittee and Project Committee were not as confident as the Commission had been that litigation over the meaning of wills would not increase if evidence of testamentary intent were made admissible without restriction. They were not prepared to endorse the former Commission's recommendation to abrogate entirely the exclusionary rule regarding extrinsic evidence of intent.

[35]         I agree. The evidence of disappointed beneficiaries and other third parties is simply not as probative of testators' intentions as their own clear and unambiguous expressions in the will. Departing from the well-established general exclusionary rule would not lead to a more faithful implementation of testators' true intentions. It would, however, lead to increased litigation. I agree with the observation of Brown J. in Re Kaptyn Estate (2010), 102 O.R. (3d) 1 (S.C.) at para. 36:

The rationale for this principle of admissibility rests in preserving the role of the written will as the primary evidence of the testator's intention and avoiding displacing the written will with an "oral will" gleaned from evidence of the testator's declarations of intent. [Footnotes omitted.]

[36]         A testator of sound mind knows her intentions and is able to express them. The very raison d'ętre of a written will, formally executed, is to record the testator's own expression of intentions. The formalities required for the proper execution of the will advance that goal by confirming that the will provides an accurate record of those intentions.

[37]         Third-party evidence of a testator's intentions gives rise to both reliability and credibility issues. Credibility is a concern because would-be beneficiaries can, without fear of contradiction by the deceased, exaggerate their relationship and fabricate the promises of requests. Reliability is a concern because testators are not obliged to write their wills to accord with the sincere or mendacious assurances they may have given to those close to them. Until they die, testators may freely revoke or vary the directions they have given for the distribution of their estates. The evidence of third parties, who cannot directly discern the mind of the testator, is logically incapable of directly proving the testator's intent.

[38]         In my view, there is no question about the good sense of the common law rule excluding direct extrinsic evidence of a testator's intent