Can one rely on extrinsic evidence (i.e. evidence that relates to a will but is not contained in it) to establish the intentions of a testator? This was a question recently considered by the Ontario Superior Court of Justice in Campbell v. Evert .
Dr. Ewert had two children, Monica and Peter.
Dr. Ewert passed away on February 7, 2011.
In 1990, Dr. Ewert executed a will which made a specific bequest of $145,000 to Monica, with the residue of the estate to be divided equally between Monica and Peter. This reflected a well understood and uncontroversial intention of Dr. Ewert’s to treat her children equally – earlier in 1990, she had transferred ownership of the family cottage valued at $145,000 to Peter.
In 2000, Dr. Ewert created an inter vivos trust with respect to a specific aspect of her estate. It provided that upon her passing, Monica was to receive $150,000, with the balance of the trust assets being divided equally between Monica and Peter.
Following their mother’s death, Monica and Peter could not agree on whether or not Monica’s windfall under the trust displaced her specific bequest under the will.
Monica argued that it did not, and insisted on respecting the terms of the 1990 will.
Peter disagreed, and argued that Monica was not entitled to both payments.
Reliance on Extrinsic Evidence
At trial, Peter relied on certain extrinsic evidence (e.g. emails, memos, etc.) to show that his mother’s intention was to give Monica money under the trust in lieu of the specific bequest under the will. The parties disputed the extent to which the trial judge could rely on this evidence, which issue became the main focus of the trial judge’s analysis.
Both parties cited the 2011 decision of the Ontario Court of Appeal in Robinson Estate v. Robinson , the leading Ontario case on the treatment of extrinsic evidence to interpret a will.
In that decision, the Court of Appeal described the court’s role when interpreting a will thusly:
The fundamental purpose of the law of wills is to give effect to the testamentary intentions of the testator for the distribution of her estate…the court must determine the testator’s intention from the words used in the will, and not from direct extrinsic evidence of intent. [Emphasis added.]
With regard to why this is the case, the Court of Appeal went on to say:
Third-party evidence of a testator’s intentions gives rise to both reliability and credibility issues…Until they die, testator’s may freely revoke or vary the directions they have given for the distribution of their estates. The evidence of third parties, who cannot directly discern the mind of the testator, is logically incapable of directly proving the testator’s intent.
Applying these principles, the trial judge determined Dr. Ewert’s intention from the language of the trust agreement alone – Peter’s extrinsic evidence was not considered. From the language of the trust agreement alone, it was found that there was nothing to indicate that Dr. Ewert did not intend that Monica not receive both payments.
Before the final verdict, the trial judge did assume for a moment that Peter’s extrinsic evidence could be considered. “[A]t its highest,” he wrote, “that evidence would constitute some indication of [Dr. Ewert’s] intention (or at least thought process) at particular points in time.” This, of course, is not enough as one is not required to act in accordance with an expressed intention. Moreover, one is entitled to change their minds at any time before passing.
Ultimately, judgement was issued in favour of Monica and the estate trustee was instructed to distribute the estate under the terms of the 1990 will. Peter, one supposes, would have to make do with the family cottage and the residue.
 2018 ONSC 593
 2011 ONCA 493