Rules of Evidence in Court of Construction

Question 1

Traditionally

Answer 1

Strict. Used to only allow evidence of the “four corders of the will. If no clear match can look outside. Can never look at extrinsic evidence of testators direct intention. (ex: lawyers note saying what he intended)

Question 2

What if no clear match between what is written and intention? (strict approach)

Answer 2

Look to surrounding circumstances

Question 3

What is the result of this strict approach?

Answer 3

Often resulted in the misinterpretation of wills

Question 4

Armchair approach

Answer 4

New approach, not objective intention that is relevant but his subjective one. Court admits evidence of surrounding circumstances immediately.

Question 5

Haidl v Sacher

Answer 5

Facts: said shares, share, and share alike- issue: did this mean per stirpes or per capita

Ratio: Judge must place himself in the position of T at the time the last will was made – concentrate on the circumstances which then existed and which might reasonably be expected to influence T in the disposition of his property – must give due weight to those circumstances insofar as they bear on the intention of T.

Question 6

Evidence of direct intention

Answer 6

While courts of construction are open to surrounding circumstanbces they are not so open to evidence of testators true intention

Question 7

Examples of evidence of direct intention

Answer 7

• People who were there
• Solicitor notes
• Non-testamentary written documents saying “this is my intention”

Question 8

Exceptions from no evidence of direct intention

Answer 8

1) When a testator makes a gift to someone who he knows is dead already at time gift is made
2) If a latent ambiguity exists

Question 9

Latent ambiguity

Answer 9

Scenario where there are two or more subjects or objects to which the description in a will could equally apply and this may only come to light upon surrounding circumstances or could be readily apparent

Question 10

Re Carrick

Answer 10

Facts: made to two different charities, got names wrong and no charities that corresponded to them exactly. Direct evidence as to who they intended

Ratio: Extrinsic evidence is admissible only to determine which of several persons or things was intended under an equivocal description. (still debate over this)

Question 11

SASK and BC

Answer 11

allow for direct intention under certain circumstances

Question 12

Rondel v Robinson Estate

Answer 12

What is the point of having a written will that says something clear then whats the point of letting people come in and raise issues on it and bring extrinsic evidence of intention?

Question 13

Spence v BMO (facts)

Answer 13

Concerned a will of S in the will all it said was I leave my estate to my daughter (one of them) and then a clause in his will saying to my daughter V I leave nothing as she has shown no interest in me as a father. Brought forward action on public policy

Question 14

Spence v BMO

Answer 14

• Not clear which court handles public policy
• If rule applies to court of construction then it should also apply to decisions of public policy
• General rule: extrinsic evidence of testators intention is inadmissible when will is clear and unambiguous on its face

Question 15

Thompson: 2 exceptions to Kronks reasoning in Spence

Answer 15

(1) One area of public policy where court has to look at intention of the testator—restraints on marriage- malicious or to help them in widowhood
(2) Scholarships too—look at if they meant to exclude or wanted to just give one to a certain group of people

Question 16

Common law- Lecky v Lecky

Answer 16

Other areas of law the strictness has loosened for evidence of intention/ surrounding circumstances. Ultimate goal is to apply to true intention of the testator