Ambiguous Wills

In this post, I discuss ambiguous wills, the difficulties they cause in distributing property, and how courts try to handle these situations.

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Wills, like all documents, are subject to interpretation, particularly where they contain ambiguous or unclear language. While a well-crafted will lends itself to little or no interpretive license, ambiguous wills do exist and must be addressed by the courts. There are two main ways that courts address this issue: the traditional approach and the open reformation model.

Traditional Approach to Ambiguous Wills

Under the traditional approach, extrinsic evidence is generally disallowed and not considered by the court. The court will also refuse to make any reformation of the will. Rather, the plain meaning of the words of the will is followed, regardless of the absurdity of the outcome.

Where ambiguous wills do exist, extrinsic evidence may be allowed to provide an interpretive framework. An ambiguity only exists, however, where the plain meaning of the words is not obvious. A mistake on the part of the testator is not an ambiguity.

Rather, there are two types of ambiguities:

1. Patent ambiguity: A patent ambiguity exists where the words are ambiguous on their face. For example, if a will were to read, “I devise 100 acres of my hunting land to my sons with the remaining 40 acres to my daughter,” it would be patently ambiguous. (Which part of the land to which child? What specific land? Should the children inherit outright or as cotenants?). In this case, extrinsic evidence would be allowed to shed light on the meaning of the words.
2. Latent ambiguity: Latent ambiguity exists where there is a question of meaning that arises in carrying out the terms. There are two general types of latent ambiguity: equivocation and inaccurate description.

Equivocation occurs where two or more things or persons fit the description. So, were a will to state, “I devise $10,000 to my cousin John,” and the testator has two cousins named John, this would be an equivocation requiring the introduction of extrinsic evidence to resolve the ambiguity. 3. Inaccurate description occurs where the intended recipient is unclear. So, for example, if a will reads, “I devise my land to Mr. and Mrs. Smith residing at 123 Elm Street,” but Mr. and Mrs. Smith divorced and no longer live at 123 Elm Street, there is an ambiguous will on account of an inaccurate description. Extrinsic evidence could be introduced to determine if the testator meant that the property was to go to the individuals meeting the description at the time the will was drafted, or if the intended beneficiary was Mr. Smith and to whomever he was married at the time of the testator’s death.

As a side note, bequests to an individual named in the will are held to be valid, even if the will does not include the recipients’ real names. Aliases and nicknames are sufficient for these purposes.

Openly Reforming Wills For Mistake

Courts in some jurisdictions will reform ambiguous wills—or even occasionally unambiguous wills—that they feel do not reflect the intent of the testator. Four situations arise where the will does not reflect the true intent of the testator:

1. The existence of undue influence;
2. The presence of lack of capacity or insane delusion on the part of the testator;
3. Fraud;
4. Stupidity.

The law, even under the traditional approach, recognizes relief for all of these—with the exception of the stupidity of the testator—with three exceptions:

1. Ambiguity;
2. Dependent relative revocation;
3. Mistaken belief of a child’s death.

In such situations, courts that follow the reformation approach will reform the will on their own prerogative to more accurately reflect the wishes of the testator. These courts may also take more license to resolve ambiguities than courts following the traditional approach.

There are, however, many arguments against this approach, including the following:

1. By reforming the will, the courts validate the mistake, allowing testators to take less care in the formation of their wills, trusting that the courts will figure it out. This in turn results in more ambiguous wills.
2. By following this approach, the courts open the floodgates to groundless will contests by those who say, “He didn’t mean to leave that to her; he meant to leave it to me.”
3. Courts are simply not competent to determine the intent of the testator. By reforming the will, the courts replace the judgment of the testator with their own.

The goal of this post is to demonstrate the undesirability of forming an ambiguous will. It can draw out the time and expense required by the probate process and put your loved ones in an uncomfortable situation. The best thing to do is to avoid writing an ambiguous will.

Working with a competent attorney to draft your will can help prevent this type of situation, providing greater assurance that your wishes will be clearly understood and followed after your death.

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See Also:

Grounds to Contest a Will

Revoking a Will