Admissibility of Extrinsic Evidence

Terms:
Extrinsic evidence:

External evidence; that which is not contained in the body of an agreement, contract or will.
Parol evidence:

Oral or verbal evidence which is used to explain a confusing portion of an agreement, contract
or will.
Latent ambiguity:

A latent ambiguity occurs when the language of the instrument is clear (i.e., the defect does
not appear on its face); however, when coupled with some extrinsic fact or some extraneous
evidence, there could be two or more possible meanings.
Patent ambiguity:

An ambiguity apparent on the face of the instrument and arising by reason of any inconsistency
or inherent uncertainty of language used, leading to an indefinite or confused meaning.
In the last chapter, we studied how mistakes are remedied in the wills context. The
admissibility of extrinsic evidence (vis parol evidence) is another method of handling
inconsistencies in the will that cannot be resolved simply by reading the plain meaning of the
words as written.
The purpose of extrinsic evidence is not to alter the testators intentions or rewrite the will.
See, e.g., Farrell v. Sullivan, 144 A. 155 (R.I. 1929). Rather, the introduction of parol evidence
becomes necessary when the court is unable to interpret the testators meaning of the
passage in question. There are two forms of ambiguitieslatent and patent ambiguities.

Latent ambiguities
A latent ambiguity exists when the language of the will, though clear on its face, is susceptible
to more than one meaning when applied to the extrinsic facts. See, e.g., In re Frosts Will, 89
N.W.2d 216 (Wis. 1958). In these cases, parol evidence is admissible to resolve the
ambiguity.
Example: Wilma made a bequest in her will to my cousin, John Reynolds. On its face, there

does not appear to be an ambiguity; however, Wilma had two cousins named John Reynolds.
Two or more persons meet the description in the will. Here, extrinsic evidence would be
admissible to resolve this latent ambiguity.
Example: In her will, Wilma devised the house I own in Hudson County to my niece Sinclair.

On its face, there does not appear to be an ambiguity; however, Wilma owned three homes in
Hudson County. Since two or more things match the description in the will, extrinsic evidence
would be admissible to resolve this latent ambiguity.
Another type of latent ambiguity is where no person or thing exactly matches the description
in the will, but two or more persons or things meet the description, if taken together. In these
instances of imperfect descriptions, extrinsic evidence would also be admissible to clear up

the uncertainty. However, if the parol evidence does not satisfactorily resolve this ambiguity,
the gift fails and passes instead under the terms of the residuary clause or intestacy.
Example: Wilma made a bequest in her will to my niece, Harriett Joann Fitzpatrick. On its

face, there does not appear to be an ambiguity; however, Wilma had two nieces with similar
sounding namesHarriett Fitzpatrick and Joann Fitzpatrickbut no exact match to Harriett
Joann Fitzpatrick. The uncertainty arises from the fact that it is not ascertainable who Wilma
meant. To assist in clearing up this confusion, extrinsic evidence would be admissible to
resolve this latent ambiguity. See, .e.g., Nicholl v. Bergner, 63 N.E.2d 828 (Ohio 1945); Bond
v. Riley, 296 S.W. 401 (Mo. 1927).

Patent ambiguities
A patent ambiguity exists when the uncertainty appears on the face of the will. Traditionally,
parol evidence was not admissible to clarify a patent ambiguity. See, e.g., Jacobsen v.
Farnham, 53 N.W.2d 917 (Neb. 1952). The modern view is to also admit parol evidence in
these instances. See, e.g., In re Estate of Brown, 922 S.W.2d 605 (Tex. 1996).
Example: Lindsays will bequeathed the sum of ten dollars ($10,000) to my sister, Sophia.

Under the traditional view, parol evidence would not be admissible to clarify or explain this
patent ambiguity. Accordingly, the gift to Sophia fails since the will does not accurately
identify which amount Lindsay intended to give to her.
Conversely, under the modern view, more courts are rejecting the distinction between patent
and latent ambiguities, thereby allowing the admission of extrinsic evidence in either type of
ambiguity. As such, if the evidence submitted can clarify whether the amount is $10 or
$10,000, the courts intervention merely interprets Lindsays intentions rather than serves to
rewrite her will.
When extrinsic evidence is admissible, courts generally receive any competent evidence that
may bear on the testators actual or probable intent. Accordingly, courts evaluate the facts
and circumstances surrounding the testators execution of the will to make a determination as
to the testators intent. In addition, courts will survey the testators relationships with the
intended beneficiaries, the testators age and understanding of language.
Example: Andre, an illiterate testator, drafted his own will, leaving his estate to his children.
The court admitted evidence showing that Andres children were dead when he executed his
will, and that he had meant to name his grandchildren. See, e.g., In re Estate of Schedel, 73
Cal. 594 (1887).
Lastly, unlike attorney liability to the intended beneficiary for omitting a clause that makes a
gift to that beneficiary, case law has held that an attorney is not liable for drafting an
ambiguous will. Perhaps the difference stems from the fact that extrinsic evidence is usually
admissible to explain uncertainties; however, parol evidence is not allowable to add an
omitted clause. Therefore, drafting an ambiguous will is not as harmful as omitting a clause in
a will.