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WILLS/TRUST 26: What happens when the language of the Will or Codicil is uncertain?

WILLS/TRUST 26: What happens when the language of the Will or Codicil is uncertain? - Michigan Attorney Blog | Aldrich Legal Services - pic7

In this case example, Decedent executed her will in 2008 and executed a codicil to that will in 2011. In her will, Decedent named her niece, B, as her personal representative, with her other niece, O, to take the position if B could or would not. In the codicil, however, Decedent named O as her personal representative.

Informal Probate

Decedent passed away in 2014. O applied for informal probate and for the appointment of herself as personal representative. She was duly appointed as personal representative of Decedent’s estate, with no objections. Thereafter, O properly served the application and appointment on all interested parties, including B, who is O’s sister. An inventory was provided to all interested parties as well.

Removal as a Devisee

The 2015 inventory listed an investment account with a value of $130,896.21 as the primary estate asset. Despite the relatively low assets of the estate, no progress was made on the informal probate of the will for several years and no distributions were made. Finally, in November 2018, B petitioned for the removal of O as the personal representative. O filed a petition asserting that Decedent’s codicil entitled O to the residue of Decedent’s estate and removed B as a devisee (someone who real estate is left to) or beneficiary under the will.

The trial court thereafter scheduled a hearing to address the request for removal of O as personal representative and for the interpretation of Decedent’s codicil.

Patent Ambiguity

A patent ambiguity exists if an uncertainty concerning the meaning appears on the face of the instrument and arises from the use of defective, obscure, or insensible language.

The trial court concluded a patent ambiguity with respect to whether Decedent intended B to be removed as a beneficiary of her estate. Decedent’s will clearly stated that B was intended to be a beneficiary of the will, specifically, she was to receive the residue of Decedent’s estate. While the codicil clearly specifies an intent to remove B as personal representative, it was not so clear as to whether the codicil also modified the distribution of Decedent’s residual estate.

Court Decision

The primary goal of the Court in interpreting a will is to effectuate the intent of the testator. The court gives effect to the drafter’s intent as indicated in the plain language of the will. The will must be read with the intent expressed in the document. If there is no ambiguity, the Court is to enforce the will as written. However, if the intent of the testator cannot be gleaned solely by reference to the will because there is an ambiguity, the Court may discern the intent of the testator through other sources.

Because there is an uncertainty concerning the meaning of the codicil, the trial court could look beyond the codicil to ascertain intent. Unfortunately, the only extrinsic evidence made available was the conflicting hearing testimony of B and O. The court did not find O to be credible and found B to be generally credible.

Ultimately, the trial court determined that because the actual evidence presented to it did not provide any real guidance to resolve the patent ambiguity concerning Decedent’s intent with respect to the residue of her estate, it would simply look at the unambiguous language that was present in the codicil and apply it as written.

Do You Need an Attorney to Draft A Will?

A well drafted will can also help ensure that your children and other family members understand your wishes, thus minimizing the risk of disputes and litigation. You want to be certain that your will accomplishes what you want it to.

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