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Tony Wickenden: What to consider when contesting a will


Last week I referenced Downton Abbey as a reason for considering what was required to make a valid will. An obvious Downton-related question was what happens if the validity of a will is challenged?

Well, whenever the validity of a will is contested, it is usually permissible to allow the use of extrinsic evidence to determine the validity of the will, such as whether the testator had testamentary capacity or if the will was properly executed according to the Wills Act formalities.

But 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 to be rewriting the will.

We have had to consider the courts’ use of extrinsic evidence in interpreting legislation in a purposive way in relation to many aggressive tax avoidance schemes.

The growing acceptance of purposive interpretations referencing additional content related to, but extraneous from, the legislation in question was, it seems, a strong contributor to the official support for a GAAR, ie putting the power firmly back with the legislature and administration.

Having said all of that, and still with Matthew Crawley (deceased) in mind, the common law (yes, it does seem odd to refer to the ‘common law’ in an article about the toffs at Downton) 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. Cases, however, appear to strongly support the view that testamentary intent is what counts primarily.

But what if the will is ambiguous? What happens then?

A patent ambiguity is an 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.

Jurisdictions differ as to whether they will admit extrinsic evidence to resolve patent ambiguities. Many courts do not admit extrinsic evidence at all –  the predominant ruling of courts in the past. But courts are increasingly allowing extrinsic evidence, especially when the ambiguity has arisen because of a scrivener’s error, although they differ as to what is admissible. For instance, many 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. A latent ambiguity, on the other hand, is one that is not evident from the will itself, but becomes evident when the fulfilment of the ambiguous clause is attempted. Most latent ambiguities involve beneficiaries or property that have been misidentified or where the identification is ambiguous. There are two specific types of latent ambiguities: equivocation and misdescription.

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

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

If an ambiguity cannot be resolved then the 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.

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 a testator’s intent as expressed in the will, while others will admit testimony as to what the testator said when the will was executed.

So establishing the testator’s intent is essential. Ambiguities are resolved by determining testamentary intent. Rather like the purposive interpretation of legislation in relation to tax avoidance, it seems the courts will admit evidence that specifically shows intent. That evidence can include remarks that the testator made at the time the will was executed. The prime objective of the courts in interpreting a valid will under dispute must be to establish what the testator intended when executing the will.

Tony Wickenden is joint managing director of Technical Connection

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