Rules of Evidence in Court of Construction Flashcards

1
Q

Traditionally

A

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)

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2
Q

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

A

Look to surrounding circumstances

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3
Q

What is the result of this strict approach?

A

Often resulted in the misinterpretation of wills

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4
Q

Armchair approach

A

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

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5
Q

Haidl v Sacher

A

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.

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6
Q

Evidence of direct intention

A

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

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7
Q

Examples of evidence of direct intention

A
  • People who were there
  • Solicitor notes
  • Non-testamentary written documents saying “this is my intention”
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8
Q

Exceptions from no evidence of direct intention

A

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

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9
Q

Latent ambiguity

A

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

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10
Q

Re Carrick

A

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)

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11
Q

SASK and BC

A

allow for direct intention under certain circumstances

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12
Q

Rondel v Robinson Estate

A

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?

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13
Q

Spence v BMO (facts)

A

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

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14
Q

Spence v BMO

A
  • 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
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15
Q

Thompson: 2 exceptions to Kronks reasoning in Spence

A

(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

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16
Q

Common law- Lecky v Lecky

A

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