Will Construction and Extrinsic Evidence

Whenever the validity of a will is contested, every court allows the use of extrinsic evidence to determine the validity of the will, such as whether the decedent had testamentary capacity or if the will was properly executed according to the Wills Act formalities. However, the use of extrinsic evidence to resolve ambiguities in the will has been limited under common law. Generally, the courts admit extrinsic evidence to resolve ambiguous wording but will not add words to the will, since they consider that re-writing the will.

Plain Meaning Rule

The common law tends to interpret wills according to their plain meaning. Courts may use extrinsic evidence to resolve an ambiguity, but they will not allow extrinsic evidence to add or subtract from the will, nor to re-interpret words to mean something other than their plain meaning, even when there was an obvious mistake and testamentary intent was clear. Although probate judges have repeated many times the piety that testamentary intent is paramount, they argue that allowing extrinsic evidence to change a will from its plain meaning invites fraud and increases the cost of administering the estate.

Numerous arguments support allowing only a plain meaning interpretation to a will:

  1. If a will can be amended with extrinsic evidence, then how can any testator be sure that her intention will be carried out?
  2. Extrinsic evidence can be unreliable.
  3. Extrinsic evidence can be fraudulently created.
  4. Extrinsic evidence may alter the testator's scheme, especially since many years may have passed since the will was drafted and witnessed. People, and especially lawyers who drafted the will, are apt to say what the testator should have intended instead of what she actually intended, especially if things have changed, such as tax laws, where changing the will would be more advantageous to the beneficiaries.

However, the modern trend is to abolish the plain meaning rule, because, more often than not, the plain meaning rule frustrates the testator's intent rather than preserves it. Most of the arguments against abolishing the rule are mitigated by requiring a clear-and-convincing-evidence standard.

Patent Ambiguities

A patent ambiguity is a ambiguity or contradiction that is evident from the will itself. Examples of patent ambiguities include identifying a beneficiary, but failing to mention the gift; giving a gift to one beneficiary, then later in the will, giving the same gift to another, or stating that a beneficiary has a specific proportional interest in property, then later repeating the same devisement to the same beneficiary but with a different proportional interest. Patent ambiguities may arise from the testator or from scrivener's error, where the ambiguity arose because of a mistake in drafting the document, or from the indiscriminate use of boilerplate language in constructing the will.

Jurisdictions differ as to whether they will admit extrinsic evidence to resolve patent ambiguities. Many courts do not admit any extrinsic evidence at all, and this was the predominant ruling of courts in the past. However, courts are increasingly allowing extrinsic evidence, especially when the ambiguity has arisen because of a scrivener's error, although they differ as to what kind of evidence is admissible. For instance, many courts allow evidence to show the testator's intent, while others specifically exclude such evidence, ruling that the testator's intent should only be found in the will itself.

Latent Ambiguities

A latent ambiguity is one that is not evident from the will itself, but becomes evident when the fulfillment of the ambiguous clause is attempted. Most latent ambiguities involve beneficiaries or property that have been misidentified or where the identification is ambiguous. Latent ambiguities can be classified as an equivocation or a misdescription.

An equivocation is a description that may describe more than 1 object. For instance, a testator leaves a specific request to his nephew, but he has more than 1 nephew.

A misdescription is a description where part of it is incorrect. A common example of this type of ambiguity is devising property identified by a specific address, but the address is incorrect, or a beneficiary is identified by a nickname instead of his legal name.

Many jurisdictions, especially in the past, will only delete the ambiguous words to see if a plain meaning can be given to the resulting sentence. If a plain meaning without the crossed-out words does not resolve the ambiguity, then these courts treat the gift as a failed gift, in keeping with their rule that they will admit extrinsic evidence to resolve ambiguous wording, but not to rewrite wills.

However, the courts have allowed a personal usage exception, where the testator has habitually used the same words to connote a specific meaning. The most common example of this is the use of nicknames. When the testator bequeaths a gift to a person identified by their nickname, the courts will generally admit extrinsic evidence to determine the actual identity of the person. Another common example is using the wrong word technically in referring to something, such as a testator who commonly referred to his stepchildren as his children.

In the case of latent ambiguities, the admittance of evidence is a necessity, since the ambiguity would not be evident to the court without someone bringing the ambiguity to its attention. Again, jurisdictions differ in their responses: some courts will admit testator's intent as expressed in the will, while others will admit testimony as to what the testator said when the will was executed.

Reformation: Allowing Extrinsic Evidence to Resolve Ambiguities

The modern trend in the law is toward reformation, in which extrinsic evidence is admitted to resolve any type of ambiguity, even if it is necessary to reform the will. Hence, no consideration is given to the plain meaning rule or the distinction between patent and latent ambiguities, or to whether the error was caused by the testator or the drafter of the will. The arguments for allowing reformation are several:

  1. Courts admit evidence when there is fraud, so why should it be different for mistakes in drafting?
  2. An ambiguity is an ambiguity—why provide different remedies simply because they are classified differently?
  3. Since most courts allow a personal usage exception, allowing extrinsic evidence to resolve personal usage ambiguities but not for other ambiguities is incongruous.
  4. And if testamentary intent is the primary objective in probating the will, then why frustrate the testator's intent because of an error that may be resolved with extrinsic evidence?
  5. Some have argued that the reformed text was not properly attested. So what? The law does not require trusts or any other will substitute to be attested even though such instruments can dispose of more property than a will and the lack of their attestation does not present any problems.

Since courts have continually stressed the prime importance of the testator's intent, ambiguities are usually resolved by determining testamentary intent. Hence, these courts will admit evidence that specifically shows intent, such as the overall testamentary scheme of the testator, and remarks that the testator made at the time the will was executed. Then the ambiguities are interpreted so that they are best aligned with what the testator intended.

Another application of reformation is to change a will when something that the testator could not have foreseen frustrates his intent. Courts apply the probable intent doctrine by interpreting the testator's overall scheme, then reforming the will to best conform to that intention. Indeed, the Restatement (Third) of Property, Donative Transfers even allows the courts to reform the will when some of its provisions do not conform to the testamentary scheme, even without any ambiguity, but only with clear and convincing evidence! Although this has not been adopted by most courts yet, a common use of this provision is to alter the will to minimize taxes.