What is the testator’s intent when making a will?

When construing the terms of a will, the court may look to the surrounding circumstances existing at the time the will was made to determine the testator’s intention. The court may not, however, have regard to direct extrinsic evidence of intent, except in limited circumstances, as the will is presumed to have been accepted by the testator, and to speak for itself. That rule applies, in particular, to instructions provided to his solicitor. Thus in Sarkin v. Osipov Estate (1989), 36 E.T.R. 139 (B.C.S.C.), Hood J. stated: On the other hand, evidence of what the testator intended, or may have intended, to write is clearly not admissible. For example, evidence of the testator’s instructions to his solicitor, or any oral or written statements made by him which amount to declarations of his intention, are clearly not admissible. In my view, the notes, hand-written and type-written, fall within the latter category. They amount to declarations of the testator’s intention as to the disposition of the 45 percent of his residue, and are clearly not admissible. According to the authorities such evidence is rarely admissible, and then only where there is an equivocation, which is not the case here. I must therefore disregard this evidence, in deciding these issues.

In Foster v. Budgen (1984), 17 E.T.R. 307 (B.C.C.A.) the trial judge admitted several affidavits which dealt with the testator’s intention: the affidavit of the solicitor who drew the will, the former partner of a firm of chartered accountants the deceased had retained, and the respondent, who was one of the executors of the will. At paragraphs 8 to 9, the court stated: 8. . . . With respect to these affidavits the learned judge said in considering the contents of the three affidavits that he had excluded from consideration any averments made therein with respect to the alleged intention of the testator regarding the contents of his will, and in particular clause 5 thereof. It appears from the reasons for judgment that the learned judge did not succeed entirely in this regard. Clearly, such evidence of the testator’s intention would not be admissible, and the admissible evidence of general circumstances would be clouded thereby. It was a dangerous move to admit these affidavits into evidence. 9. There is abundant authority for the proposition that in interpreting a testamentary document the testator’s intention must be found within the four corners of the testamentary document itself.