Legal Memorandum: Admission of Extrinsic Evidence

Issue: When will courts permit the introduction of extrinsic evidence to aid in the interpretation of testamentary instruments?

Area of Law: Estate Planning & Probate
Keywords: Testamentary instruments; Extrinsic evidence
Jurisdiction: California
Cited Cases: 114 Cal. Rptr. 2d 865; 94 Cal. App. 4; 74 Cal. App. 2d 405; 168 P.2d 432
Cited Statutes: None
Date: 05/01/2007

The decision whether to admit this additional extrinsic evidence involves a two-step process.   Estate of Kaila, 94 Cal. App. 4th 1122, 133, 114 Cal. Rptr. 2d 865, 874 (2001).  First, the court provisionally receives (without actually admitting) all credible evidence concerning the testator’s intentions, to determine whether the language used by the testator is reasonably susceptible to the interpretation urged by a party.  If, in light of the evidence, the court decides the language is reasonably susceptible to the interpretation urged, the extrinsic evidence is then admitted to aid in the second step of the process, interpreting the contract.  Id. 

In addition, in some cases established presumptions will be applied to further aid the court in ascertaining the testator’s intent.  As the court explained in In re Obrien’s Estate, 74 Cal. App. 2d 405, 168 P.2d 432 (1946):

One of the important rules of construction . . . is that in the absence of controlling language in the will to the contrary, it will be presumed that a testator intended to dispose of all of his property.  An interpretation, if reasonably possible that will prevent a partial intestacy is to be preferred to one that would require such partial intestacy.  The very fact of making a will raises a presumption that the testator intended to dispose of all of his property.


Id. at 408, 168 P.2d at 434. 

The O’Brien case […]

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