Admissibility of Extrinsic Evidence

In the last chapter, we studied how mistakes are remedied in the wills context. The admissibility of extrinsic evidence (vis parol evidence) is another method of handling inconsistencies in the will that cannot be resolved simply by reading the plain meaning of the words as written.

The purpose of extrinsic evidence is not to alter the testator’s intentions or rewrite the will. See, e.g., Farrell v. Sullivan, 144 A. 155 (R.I. 1929). Rather, the introduction of parol evidence becomes necessary when the court is unable to interpret the testator’s meaning of the passage in question. There are two forms of ambiguities—latent and patent ambiguities.

Latent ambiguities

A latent ambiguity exists when the language of the will, though clear on its face, is susceptible to more than one meaning when applied to the extrinsic facts. See, e.g., In re Frost’s Will, 89 N.W.2d 216 (Wis. 1958). In these cases, parol evidence is admissible to resolve the ambiguity.

EXAMPLE (1): Wilma made a bequest in her will “to my cousin, John Reynolds.” On its face, there does not appear to be an ambiguity; however, Wilma had two cousins named John Reynolds. Two or more persons meet the description in the will. Here, extrinsic evidence would be admissible to resolve this latent ambiguity.

EXAMPLE (2): In her will, Wilma devised “the house I own in Hudson County to my niece Sinclair.” On its face, there does not appear to be an ambiguity; however, Wilma owned three homes in Hudson County. Since two or more things match the description in the will, extrinsic evidence would be admissible to resolve this latent ambiguity.

Another type of latent ambiguity is where no person or thing exactly matches the description in the will, but two or more persons or things meet the description, if taken together. In these instances of imperfect descriptions, extrinsic evidence would also be admissible to clear up the uncertainty. However, if the parol evidence does not satisfactorily resolve this ambiguity, the gift fails and passes instead under the terms of the residuary clause or intestacy.

EXAMPLE: Wilma made a bequest in her will “to my niece, Harriett Joann Fitzpatrick.” On its face, there does not appear to be an ambiguity; however, Wilma had two nieces with similar sounding names—Harriett Fitzpatrick and Joann Fitzpatrick—but no exact match to Harriett Joann Fitzpatrick. The uncertainty arises from the fact that it is not ascertainable who Wilma meant. To assist in clearing up this confusion, extrinsic evidence would be admissible to resolve this latent ambiguity. See, e.g., Nicholl v. Bergner, 63 N.E.2d 828 (Ohio 1945); Bond v. Riley, 296 S.W. 401 (Mo. 1927).

Patent ambiguities

A patent ambiguity exists when the uncertainty appears on the face of the will. Traditionally, parol evidence was not admissible to clarify a patent ambiguity. See, e.g., Jacobsen v. Farnham, 53 N.W.2d 917 (Neb. 1952). The modern view is to also admit parol evidence in these instances. See, e.g., In re Estate of Brown, 922 S.W.2d 605 (Tex. 1996).

EXAMPLE: Lindsay’s will bequeathed “the sum of ten dollars ($10,000) to my sister, Sophia.” Under the traditional view, parol evidence would not be admissible to clarify or explain this patent ambiguity. Accordingly, the gift to Sophia fails since the will does not accurately identify which amount Lindsay intended to give to her.

Conversely, under the modern view, more courts are rejecting the distinction between patent and latent ambiguities, thereby allowing the admission of extrinsic evidence in either type of ambiguity. As such, if the evidence submitted can clarify whether the amount is $10 or $10,000, the court’s intervention merely interprets Lindsay’s intentions rather than serves to rewrite her will.

When extrinsic evidence is admissible, courts generally receive any competent evidence that may bear on the testator’s actual or probable intent. Accordingly, courts evaluate the facts and circumstances surrounding the testator’s execution of the will to make a determination as to the testator’s intent. In addition, courts will survey the testator’s relationships with the intended beneficiaries, the testator’s age and understanding of language.

EXAMPLE: Andre, an illiterate testator, drafted his own will, leaving his estate to his “children.” The court admitted evidence showing that Andre’s children were dead when he executed his will, and that he had meant to name his grandchildren. See, e.g., In re Estate of Schedel, 73 Cal. 594 (1887).

Lastly, unlike attorney liability to the intended beneficiary for omitting a clause that makes a gift to that beneficiary, case law has held that an attorney is not liable for drafting an ambiguous will. Perhaps the difference stems from the fact that extrinsic evidence is usually admissible to explain uncertainties; however, parol evidence is not allowable to add an omitted clause. Therefore, drafting an ambiguous will is not as harmful as omitting a clause in a will.