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WILLS/TRUSTS 19: Intent of the testator is to be carried out as nearly as possible.

This dispute concerns the distribution of property and other assets pursuant to the last will and testament.

The testator died on July 5, 2013 and was survived by his wife and his adult daughter who was born of his prior marriage.

On July 11, 2014, pursuant to MCL 700.1302(d) and MCL 700.3415, the wife asked the probate court for instructions as to the meaning and effect of the language in subparagraph A of the second section of the will.

The second section of the will, dealing with the testator’s intended bequest of his assets, provides as follows:

SECOND: I give and devise all my property of whatever kind and wherever found as follows:

A. I give and devise my residence and property located in Big Rapids, Michigan to my wife if she survives me.

B. All the rest, residue and remainder of my property of whatever kind and wherever found I give and devise one-half (1/2) to my daughter and one-half (1/2) to my wife. In the event either predecease me, then her share shall pass to the survivor.

In her request for interpretation by the probate court, the wife indicated that she interpreted the phrase my residence and property in subparagraph A to devise everything at the address, including all of the personal property in the residence, garage, pole barn, stable, and elsewhere on the real property, to the wife; and thus, it was not a part of the residue.

The daughter argued that the words my residence and property refers only to the residence, meaning the house, and the personal property in the house, further arguing that the rest of the real property located at the address (i.e., the farm land of approximately 43 acres ) was not included in this provision.

The probate court rejected the daughter’s argument and interpretation and held that: (1) the house or residence could not be devised without the land on which it was situated, (2) there is no patent or latent ambiguity in the language at issue in the will, (3) because there is no ambiguity in the will language, extrinsic evidence is not needed to glean the testator’s intent, (4) the words my residence include the house and the land of approximately 43 acres on which the house sits, including fixtures and outbuildings, and (5) the -3- words “and property” refer to all of the personal property located on the 43-acre parcel.

A fundamental precept which governs the judicial review of wills is that the intent of the testator is to be carried out as nearly as possible.

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