Trusts and Wills

Peter Tiersma

Plain meaning and Estate of Russell

Background: The issue is the meaning of a word or phrase in a text, and one of the parties wants to introduce extrinsic evidence on the issue

Plain Meaning Approach:

1. Look at the text to see whether there is an ambiguity.

1a. If not, do not admit the extrinsic evidence.

1b. If so, admit the extrinsic evidence.

2. Interpret the text based on the language of the text. Consider the extrinsic evidence only if it has been admitted.

Estate of Russell Approach:

1. Look at the text, as well as the extrinsic evidence, to determine whether there is an ambiguity. (There is an ambiguity if the language of the text is “reasonably susceptible” to two or more interpretations claimed to have been intended by the testator).

1a. If not, do not admit the extrinsic evidence

1b. If so, admit the extrinsic evidence

2. Interpret the text based on the language of the text. Consider the extrinsic evidence only if it has been admitted.