Mistaken or Ambiguous Language in Wills

Report
Construction of wills

If a primary goal of trusts and estates law is
to carry out donor intent, we need principles
for situations in which donor intent is not
obvious



Mistaken or ambiguous language (today’s class)
Death of beneficiary before death of testator
Changes in property after execution of a will
1
Construction of wills

Mistaken or ambiguous language


Ordinarily, testators are bound by the words in
their wills
But what if a mistake was made?


Traditionally, courts have not looked beyond the
language of the will except to resolve obvious
ambiguities—if the will could be executed as written,
then it was so executed
More and more states are allowing more and more
extrinsic evidence to carry out the testator’s intent
2
Fulfilling the decedent’s
intent

“The controlling consideration in determining the
meaning of a donative document is the donor’s
intention. The donor’s intention is given effect to
the maximum extent allowed by law.”


Restatement § 10.1 (page 335)
But traditional rules require adherence to the plain
meaning of the will, with no reformation of the will.

Extrinsic evidence allowed to resolve some ambiguities in
text but not to prove that the testator intended
something other than what was written
3
For an illustration of the
traditional view, we have
Mahoney v. Grainger, p.336

What were the facts?



Helen Sullivan instructed her attorney to divide the
residue of her estate equally among her 25 or so first
cousins
The lawyer wrote the will to divide her residue to her
living “heirs at law,” in equal shares
It turned out that she had a maternal aunt, who was
her sole living heir
4
Mahoney v. Grainger,
Mahoney v. Grainger
p.336
Aunts &
Uncles
Father
Mother
Frances
Greene
Aunts &
Uncles
??
First
Cousins
??
Helen
??
First
Cousins
What result under the UPC?
Half to Frances and the first cousins on Helen’s mother’s side;
half to the first cousins on Helen’s father’s side
5
Table of
Consanguinity
p. 93
6
Mahoney v. Grainger

Was there any ambiguity in the language of the will?


What language might have been viewed as creating
an ambiguity?


Not according to the court. It may not have reflected Ms.
Sullivan’s intent, but its application was clear
The part about dividing the residue among “heirs at law,”
“share and share alike” suggests she expected more than
one person to take the residue
Why might she have used that language even
though her aunt was her sole heir?

In case her aunt predeceased her
7
Exclusion of extrinsic
evidence, note 2, p.338

Did the court get it right (in terms of testator intent)
by giving Smith’s bequest to the Nevada corporation?


On one hand, we may conclude that the testator cared
more about the local nursing home than an out-of-state
corporation
On the other hand, we may conclude that the testator
cared more about the company that owned the home when
she wrote the will than about the company that purchased
the home after she wrote the will
8
Resolving ambiguities

Traditional courts do not allow extrinsic evidence to
resolve patent ambiguities (those apparent from the
text itself)


Where devise is unclear, it could pass through a residuary
clause or through rules of intestacy; sometimes later
provisions trump earlier provisions, sometimes specific
provisions trump general provisions
Traditional courts allow extrinsic evidence to resolve
latent ambiguities (which niece named Alicia?)

Indiana allows extrinsic evidence for both patent and latent
ambiguities
9
The causes and
effects of will defects
Cause:
Intentional
Wrongdoing
Cause:
Innocent
Acts
Effect:
Effect:
Lack of Volition
Mistaken Terms
Undue Influence,
Duress
Fraud
(relief granted)
Lack of Capacity,
Insane Delusion
(relief granted)
(relief granted)
Mistake
(no relief)
And courts fix mistaken revocation of wills under DRR or compensate for
the testator’s failure to update a will after a divorce or the birth of a child
10
Arnheiter v. Arnheiter (p.343)
Arnheiter v. Arnheiter
and the trend in favor of reformation of wills
Reformation – NOT allowed:
I direct my Executor to sell my undivided onehalf interest of premises known as No. 304
Harrison Avenue . . . .
No. 317
What happens to 317 Harrison?
It falls into the residue.
Falsa demonstratio non nocet (mere erroneous
description does not vitiate) – allowed:
I direct my Executor to sell my undivided onehalf interest of premises known as No. 304
Harrison Avenue . . . .
11
Estate of Gibbs
Estate of Gibbs
p.
344
Reformation – NOT allowed:
W.
Robert J. Krause, now of 4708
North 46th Street, Milwaukee,
Wisconsin…
Ignoring certain details – allowed:
Robert J. Krause, now of 4708
North 46th Street, Milwaukee,
Wisconsin…
12
Erickson v. Erickson, p. 345
Erickson v. Erickson
Open reformation
of a will
Sept. 1, 1988
Dorothy and Ronald marry.
Feb. 22, 1996
Sept. 3, 1988
Ronald and Dorothy execute mutual wills, naming
each other as executor and beneficiary, with their
children, collectively, as contingent beneficiaries.
Ronald
Ronald dies.
Dorothy
Revoked by
marriage??
Laura
Ellen
Alicia
Thomas
Chris
Maureen Kathleen
If will is revoked, D takes half the estate, with R’s children taking the other half
13
Erickson v. Erickson

Note that both the trial court and the supreme court
wanted to probate the will (which by statute was
revoked by marriage), but for different reasons


According to the trial court, it was clear from the will itself
that Ronald intended it to survive the wedding (he left his
estate to his fiancée, he named her his executrix and
guardian of his daughters upon his death)
According to the supreme court, the language of the will
itself did not provide for the contingency of a subsequent
marriage. Nevertheless, extrinsic evidence could be
admitted to establish the testator’s intent
14
Erickson v. Erickson

Why admit extrinsic evidence to correct a lawyer’s
error?



There is no meaningful difference between admitting
evidence of a mistake and admitting evidence of fraud,
duress or undue influence
While the signing of the will creates a presumption that it
accurately reflects the testator’s intent, the presumption
should be rebuttable
A clear and convincing evidence standard for overcoming
the presumption will ensure that the exception for
admitting extrinsic evidence is a narrow one
15
Correcting mistakes in wills
Mahoney
v. Grainger
No extrinsic
evidence; No
reformation.
Arnheiter v.
Arnheiter;
Estate of Gibbs
The court “has no
power to reform”
but court reforms
anyway.
Erickson v.
Erickson;
UPC §2-805
Open reformation;
extrinsic evidence
permitted.
16
UPC §2-805 (2008), p. 351:
Reformation to Correct Mistakes
“The court may reform the terms of a
governing instrument, even if
unambiguous, to conform the terms to
the transferor’s intention if it is proved
by clear and convincing evidence that
the transferor’s intent and the terms of
the governing instrument were affected
by a mistake of fact or law, whether in
expression or inducement.”
17
Substantial Compliance
and Harmless Error
Substantial
Compliance
Types of The court may deem a
Curative defectively executed
Doctrines will as being in accord
with statutory
formalities if there is
clear and convincing
evidence that the
purposes of those
formalities were served.
Harmless Error
Rule (UPC §2-503)
The court may excuse
noncompliance if there
is clear and convincing
evidence that the
decedent intended the
document to be his
will.
18
UPC §2-503: Harmless Error
Although a document or writing added upon a document was
not executed in compliance with Section 2-502, the document
or writing is treated as if it had been executed in compliance
with that section if the proponent of the document or writing
establishes by clear and convincing evidence that the
decedent intended the document or writing to constitute
(i) the decedent’s will,
(ii) a partial or complete revocation of the will,
(iii) an addition to or an alteration of the will, or
(iv) a partial or complete revival of his [or her] formerly
revoked will or of a formerly revoked portion of the
will.
19
UPC §2-502(b)-(c).
pp. 227, 279
(b) [Holographic Wills.] A will that does not comply with
subsection (a) is valid as a holographic will, whether or not
witnessed, if the signature and material portions of the
document are in the testator’s handwriting.
(c) [Extrinsic Evidence.] Intent that a document constitute the
testator’s will can be established by extrinsic evidence,
including, for holographic wills, portions of the document
that are not in the testator’s handwriting.
20

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