Aug 7, 2020

The Only Evidence of Intention is in the Words of the Will

Rondel v. Robinson Estate, 2011 ONCA 493 (CanLII)

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. When there is a dispute, that guiding principle has the court standing up for the wishes of the deceased person who can no longer speak. However, when unanticipated complications do arise, a judge cannot guess what the testator would have done by referring to external evidence or hearsay from her friends. Instead, the court must extract the answer based on the meaning of the words in the will. This highlights the importance of giving careful thought to all the possible ramifications of those words.

The Testator Makes a Will in Spain to Dispose of European Property

A dramatic example of how things may go wrong occurred in the Rondel case. The testator Blanca Robinson was born in Spain, worked in England, and later lived in Canada after she married. In middle age, she reconnected with Dr. Rondel, whom she had known many years earlier in England, and they lived together for several years in a conjugal relationship in a flat that she owned in London. She had no children of her own, but had step-children, and siblings in both Canada and Spain. In addition to the flat in London, she also owned property in both Canada and Spain.

Inheritance issues can become complicated when a person owns property in more than one country. Canadian law takes the position that the deceased’s movable property (such as jewelry or financial assets) located anywhere in the world is governed by Canadian law if she was a resident of Canada. By contrast, the inheritance of immovable property (land or real estate) is governed by the law of the country in which it is located, the lex situs. If the deceased was a resident of a foreign country, but owned a bank account in Ontario, for example, the foreign will and foreign law would govern its distribution. In practice, it would usually be necessary to take steps to get an Ontario court to recognize the foreign probate of the foreign will.

To try to minimize these complications, people who have significant property in multiple jurisdictions sometimes go to the expense of getting a separate will made for each of them.

That is what Mrs. Robinson did. First, she had a will made in Spain in 2002, in which she disposed of all her European property. In that will, she left her Spanish property to her sisters, and a life interest in the London flat to Dr. Rondel. That will said nothing about property in Canada.

Subsequently, learning that she had an inoperable brain tumour, she made a new will in Ontario in 2006. In the latter, she left the sum of $1 million to Dr. Rondel, with the residue to be divided among friends and relatives, including her stepdaughter Kelly Anne Robinson, the respondent on this appeal.

Her Canadian Will Contained Words Revoking All Earlier Wills

Most people with simpler situations only ever want to have a single will. Therefore, a standard clause often included is that “this will revokes all previous wills.” That was contained in Mrs. Robinson’s 2006 will.

Apprised of the Canadian will, the English court refused to accept the validity of the 2002 Spanish will that granted the London flat to Dr. Rondel. Next, he turned to the Ontario courts to try to obtain an interpretation that the Ontario will did not intend to revoke the Spanish will. He provided an affidavit from a close friend of the deceased, stating her belief that the deceased and Dr. Rondel were in a loving relationship and that she intended him to retain the London flat.

No External Evidence Allowed when the Words of the Will are Clear

Dr. Rondel’s argument based on external evidence was rejected by the lower court judge, whose decision was affirmed on appeal. The testator had read the will, and signed it. Perhaps she did not want the Spanish will revoked, but perhaps she did. It is impossible to know after she can no longer be asked.

If something in a will is unclear or could have more than one meaning, external evidence may be called to clarify it. For example, this arose in an Alberta case where it was unclear whether the testator’s “home” included the classic motorcycle collection in his garage.[1] In that case, testimony from friends of the deceased was admitted for evidence of his intentions.

In the absence of anything in the will that is ambiguous or equivocal, the rule of Canadian common law is that no outside evidence will be considered.

There are strong policy reasons for this, as stated by Juriansz J.A., writing for the panel:

[35] … The evidence of disappointed beneficiaries and other third parties is simply not as probative of testators' intentions as their own clear and unambiguous expressions in the will. Departing from the well-established general exclusionary rule would not lead to a more faithful implementation of testators' true intentions. It would, however, lead to increased litigation….

[37] Third party evidence of a testator's intentions gives rise to both reliability and credibility issues. Credibility is a concern because would-be beneficiaries can, without fear of contradiction by the deceased, exaggerate their relationship and fabricate the promises of bequests. Reliability is a concern because testators are not obliged to write their wills to accord with the sincere or mendacious assurances they may have given to those close to them. Until they die, testators 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.

Nobody can ever really know the testator’s intent after she is gone. This was stated bluntly by the judge in an earlier Ontario decision, which also involved unanticipated complications because of the way foreign law affected real property in a foreign country. The court does not pretend to know what the testator would have wished under those circumstances. It must go by the words of the will:

In coming to that conclusion, I do not pretend to have divined Mr. Henry Hersen's true intention when he penned his will. I have no idea what he actually intended. Absent any solid indication of the testator's true intention in the words of the will, I, like previous courts, favour an interpretation which brings certainty and consistency.[2]

This remains a firmly established principle of Canadian law. Dr. Rondel sought leave to appeal to the Supreme Court of Canada, which was denied. The Rondel decision of the Ontario Court of Appeal has been cited 37 times, including by courts in many other provinces besides Ontario. It was re-affirmed in 2016 by the Ontario Court of Appeal in another high-profile decision.[3]

Measure Twice and Cut Once

Therefore, a lawyer drafting a will for a client must be fully aware of all the property and relationship issues of the testator to ensure that nothing in the will leads to an undesired outcome. Many testators do not have highly complex family or property issues, but this cannot be known without checking. It is important to do a comprehensive interview with the client to minimize the risk that something unanticipated will arise.


Peter Spiro is Principal of Spiro Law P.C. and counsel to www.rogersonlaw.com for estate litigation. This article is for general information purposes and you should seek specific advice for your particular case.


[1] Hicklin Estate v. Hicklin, 2019 ABCA 136 (CanLII), par. 18, http://canlii.ca/t/hzqk4#par18.

[2] Granot v. Hersen, 1999 CanLII 1689 (ON CA), <http://canlii.ca/t/1f9fh>.

[3] Spence v. BMO Trust Company, 2016 ONCA 196 (CanLII), par. 90, http://canlii.ca/t/gnmj9#par90.