In probate litigation in Tennessee, disputes sometimes center on what the person who made the will (the “testator” or “testatrix”) meant in the will. Such litigation can fairly easily be avoided by careful will drafting. Nevertheless, wills are sometimes not sufficiently precise or are susceptible to different interpretations–particularly wills drafted by non-lawyers.
The Court of Appeals of Tennessee recently issued an opinion in a case involving a holographic (handwritten) will which was phrased such that it was unclear who the testator meant to make the beneficiaries of his will. The case provides a helpful summary of the basic Tennessee law that applies when a court is confronted with a will which can be interpreted in more than one way.
A husband (“Husband”) drafted his own will. In the will, he stated that all of his property was to be left to his wife’s daughter “to be divided as she sees fit among kids. . . .” The wife’s daughter had several children. Husband passed away and his handwritten will was admitted to probate.
The dispute in the case arose when the daughter of the deceased Husband (“Daughter”), stepped forward and filed a declaratory judgment action in which she sought to have the will determined to be invalid. What was her basis for claiming that the will was invalid? She argued that the phrase “among kids” was too vague and unclear to be interpreted. This argument had merit because, just from the language of the will, it was impossible to tell whether Husband meant his wife’s daughter’s kids; his kids (which would include “Daughter”); or both.
Under Tennessee law, if a will is so vague and/or ambiguous that a court cannot determine the testator’s intentions, the court must refuse to enforce that will, or at least the part of it that is too vague or unclear. In Tennessee, if a person dies without a valid will, his or her assets are distributed according to some statues that direct which relatives receive what when a person dies without a will. In this case, Daughter stood to inherit money if Husband’s (her father’s) assets were distributed according to the laws of intestate succession. On the other hand, if the will was held to be valid and “kids” was held to mean Husband’s wife’s daughter’s kids, Daughter would receive nothing.
The Court of Appeals began its analysis by reviewing some basic rules applicable to construing wills in Tennessee:
(1) The construction of a will is a matter for the court—-not the jury;
(2) If a testator’s intentions are clear, it is not for the court to second guess the testator and the court may never rewrite a will;
(3) If someone makes a will, a court must presume that the person intended to die with a will and the court must seek to construe the will so as to distribute all of the testator’s assets;
(4) Evidence other than the words used in the will (referred to as “extrinsic evidence”) may not be used in trying to determine the intent of the testator unless the will contains a latent ambiguity as opposed to a patent ambiguity; and
(5) If the ambiguity in the will is patent, as opposed to latent, extrinsic evidence cannot be considered in determining the intentions of the testator.
The Court of Appeals determined that the ambiguity caused by the Husband’s use of the phrase “among kids” was a latent ambiguity. Therefore, it held that the case should be sent back to the trial court so that both sides could present extrinsic evidence about what Husband meant by the word “kids.”
The court provided a well written and pretty thorough analysis (with examples) of the difference between a latent ambiguity and a patent ambiguity. Here is a summary: A latent ambiguity exits where the words of the will are plain and intelligible, but capable of different meanings because of facts extraneous to the will. A patent ambiguity, on the other hand, cannot be made clear even by looking to outside facts (facts other than the words used in the will).