IHTM12055 - Construction of wills: use of extrinsic evidence

Deaths before 1 January 1983

The general rule that the court is entitled to ascertain the testator’s (IHTM12001) intention only from the words of the will itself applies. There are certain exceptions to this principle and extrinsic evidence of what the testator intended will be admitted

• where the surrounding circumstances are taken into account under the ‘armchair rule’. That is, the court has the right to ascertain all the facts known to the testator at the time he made the will and so place itself in the testator’s position at that time if the words of the will are insufficient 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, extrinsic evidence may be admitted to show which person or thing is intended

Deaths 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 assist in 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 understood or perceived meaning in its context so that no effective meaning can be given to it
• the language used in any part of the will is ambiguous on its face, 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, such as where the testator devises his house to a beneficiary and the testator owns more than one house

All forms of evidence are admissible to ascertain the testator’s intention, whether contemporaneous with the making of the will, prior to or subsequent to it.

If extrinsic evidence is admissible and is admitted, but nevertheless no effective meaning can be given to a provision, the gift purportedly made by it will fail.