Parol Evidence and the Unambiguous Will

October 29, 2013 § 2 Comments

Every now and then, a lawyer will offer testimony about the testator’s intent, arguing that it is admissible as an exception to the hearsay rule under MRE 802(3), which states:

(3) Then Existing Mental, Emotional, or Physical Condition. A statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of the declarant’s will. [Emphasis added]

Once that rule is invoked, like a magical incantation, opposing counsel often sits down and docilely allows the floodgates of testimony to open without further objection, freeing a torrent of testimony that the court must process in its final opinion.

Consider, however, that before the court can hear all those statements of memory or belief, you have to ask yourself whether this parol evidence is admissible in the first place — regardless whether it is or is not hearsay?

In Estate of Black v. Clark, decided by the COA on October 8, 2013, the COA said:

¶5. If the language of a will only allows one interpretation as to how the testator’s property is distributed, the will is unambiguous, and courts may not consider parol evidence to determine the intent of the testator. Stovall v. Stovall, 360 So. 2d 679, 681 (Miss. 1978) (citing Seal v. Seal, 312 So. 2d 19, 21 (Miss. 1975)). Parol evidence may only be considered if the language of the will itself can be construed to result in more than one interpretation as to the disposition of property. Seal, 312 So. 2d at 21.

So before MRE 803 is invoked and parol testimony is allowed, it must be established that the will is ambiguous.

The fact that the parties disagree as to a document’s meaning does not make it ambiguous as a matter of law. Ivison v. Ivison, 762 So.2d 329, 335 (Miss. 2000). In determining the meaning of a writing, the court must employ an objective standard rather than taking into consideration the subjective intent or a party’s belief. Palmere v. Curtis, 789 So.2d 126, 131 (Miss. App. 2001).

The process of contract interpretation adds some insight. In the case of Williams v. Williams, 37 So.3d 1196, 1200 (Miss. App. 2009), that process was set out as follows:

“We have delineated a three-tiered process for contract interpretation. Pursue Energy Corp. v. Perkins, 558 So.2d 349, 351 (Miss. 1990). First, we look to the “four corners” of the agreement and review the actual language the parties used in their agreement. Id. at 352. When the language of the contract is clear and unambiguous, we must effectuate the parties’ intent. Id. However, if the language of the contract is not so clear, we will, if possible, “harmonize the provisions in accord with the parties’ apparent intent.” Id. Next, if the parties’ intent remains uncertain, we may employ canons of contract construction. Id. at 352-353 (citing numerous cases delineating various canons of contract construction employed in Mississippi). Finally, we may consider parol or extrinsic evidence if necessary. Id. at 353″ [West v. West, 891 So.2d 203, 210 (Miss. 2004)]


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§ 2 Responses to Parol Evidence and the Unambiguous Will

  • The problem here is forgetting a concept taught in first year contracts: The parole evidence rule is not a rule of evidence. Some lawyers have a (lousy) rule of thumb that if they find a pigeonhole for admissibility, the evidence gets in and the problem is solved.

    What I do doubt is that the process is as multi-step in practice as the final quote (which is a classic statement of how the process is supposed to work) suggests. If the document is such that the party’s apparent intent isn’t clear and “harmonizing” has to be used, or, one notch more, canons of construction the court must resort to canons of construction, I think most trial courts would be willing to let in the parole evidence. And I can’t imagine a trial court being reversed for considering parole evidence when the “language… is not so clear.”

    I agree it’s a good post.

  • thusbloggedanderson says:

    Good post. Some lawyers want to skip right past the “getting to ambiguity” part.

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