Bill 28: Evidence of Testamentary Intent

The proposed new Wills, Estates and Succession Act, recently introduced in the British Columbia Legislative Assembly, has a provision in section 4 setting out the when evidence of the testator's intent may be considered by the court when interpreting a will.

The proposed section 4(2) says,

(2) Extrinsic evidence of testamentary intent, including a statement made by the will-maker, is not admissible to assist in the construction of a testamentary instrument unless
(a) a provision of the will is meaningless,
(b) a provision of the testamentary instrument is ambiguous
(i) on its face, or
(ii) in light of evidence, other than evidence of the will-maker's intention, demonstrating that the language used in the testamentary instrument is ambiguous having regard to surrounding circumstances, or
(c) extrinsic evidence is expressly permitted by this Act.

This is new. Currently, British Columbia does not have legislation setting out the rules for interpreting wills. We have relied on common law rules developed by the courts.

Frankly, I would just as soon leave it that way, and allow the courts to continue to develop rules for admitting evidence in interpreting wills. It is very difficult to codify these rules, and I am concerned that as drafted this provision itself could be misinterpreted.

Usually, the court will not admit direct evidence of what the testator intended. For example, if a will is unclear, you cannot ask the lawyer who drew the will in court what the testator told the lawyer he intended.

Indirect evidence of intention of the surrounding circumstances, such as the testator's relationships with people he or she might have intended to benefit is admissible. For example, see my previous post about the case of Robson Estate (Re), 2006 BCSC 673, in which Madam Justice Dillon considered evidence showing that the testator had attended a particular church to find out what church the testator intended to name as a beneficiary.

The British Columbia Law Institute, in it's Succession Law Reform Project recommendations, recommended this provision to address the rare circumstances in which direct evidence of the testator's intent (in other words, what the testator said he or she meant) is admissible. The report includes the following commentary:

Evidence of the testator’s dispositive intent is not admissible to identify an ambiguity in a term or to interpret one that is apparent on the face of the will (patent ambiguity). Evidence of intent may be introduced to aid in interpreting a “latent ambiguity,” namely ambiguity which does not appear on the face of the will but only when the terms of the will are considered in light of surrounding circumstances. An example of latent ambiguity would be a gift to “my nephew James Scott” if the testator actually had two nephews, each having James as a middle name. In such a case evidence tending to show that the testator intended to benefit one and not the other nephew could be admitted.

Further on the report says that the proposed section,

dispenses with the distinction between patent and latent ambiguity for the purpose of admission of extrinsic evidence. It allows extrinsic evidence of surrounding circumstances, but not evidence of the testator’s intention, to be admitted for the purpose of showing an ambiguity exists. Thus evidence of intent cannot be introduced to identify an ambiguity, but may be used to interpret an ambiguity once one has been identified by reading the will in light of the factual matrix in which the testator made it.

I am concerned about the way this proposed provision is worded. The words "extrinsic evidence testamentary intent," are ambiguous. Evidence of surrounding circumstances is in my view "extrinsic evidence of testamentary intent." It is circumstantial evidence of testatmentary intent, as opposed to direct evidence of intent. Otherwise it would not be relevant. Clearly, the British Columbia Law Institute did not intend to restrict the admissibility of the surrounding circumstances, but this provision could be interpreted that way. The effect would be a more restrictive rule, rather than a less restrictive one.

Perhaps it would be preferrable to add the word "direct" in front of "extrensic evidence."

But, I prefer the "if it ain't broke..." approach in this case.