Succession: Wills: Construction of Wills: Use of extrinsic evidence
Deaths before 1 January 1983
The general rule is that the court will determine the testator’s (IHTM12001) intention only from the words of the Will itself. But, there are certain exceptions to this rule where extrinsic evidence of what the testator intended will be taken into account. These are:
- where the surrounding circumstances are taken into account under what is sometimes called the ‘armchair rule’. The court has the right to ascertain all the facts known to the testator at the time they made the Will and so place itself in the testator’s position at that time, if the words of the Will are not sufficient for its proper construction
- where there is a latent ambiguity. That is, where the subject matter of a gift or the beneficiary is described in terms which, when the surrounding circumstances are looked at, are found to be applicable to two or more persons or things. In these circumstances extrinsic evidence may be admitted to show which person or thing is intended
Deaths on or after 1 January 1983
S.21 Administration of Justice Act 1982 applies in respect of deaths on or after 1 January 1983 and provides that extrinsic evidence, including evidence of the testator’s intention, may be admitted to help with the interpretation of a Will where
- the language of any part of the Will is meaningless. That is, where a word used by the testator has no meaning in the context it is used in that can be perceived or understood, so no effective meaning can be given to it
- the language used in any part of the Will is ambiguous, such as a ‘gift to the son of A’ where the Will itself shows that A has several sons
- evidence, other than evidence of the testator’s intention, shows that the language used in any part of the Will is ambiguous in the light of surrounding circumstances. An example would be where the testator devises his house to a beneficiary and the testator owns more than one house
All forms of evidence can be admitted to determine the testator’s intention, whether it is from the time the Will was made or before or after.
If extrinsic evidence is admitted, but the court can still not give meaning to a provision, the gift purportedly made by it will fail.