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Understanding Will Interpretation and Construction: Key Concepts and Issues

This comprehensive guide explores the principles of interpretation and construction in wills, focusing on the testator's intent—both actual and presumed. It covers the types of ambiguities that can arise in wills, such as patent and latent ambiguities, and discusses the process of integration of documents and incorporation by reference. Key concepts like facts of independent significance and pour-over provisions are also addressed. The guide outlines when issues may arise, who raises them, and the historical development of testamentary laws.

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Understanding Will Interpretation and Construction: Key Concepts and Issues

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  1. Interpretationand Construction

  2. Interpretation • Determine testator’s actual intentfrom will or permissible extrinsic evidence.

  3. Construction • Determine testator’s presumed intent from will or permissible extrinsic evidence.

  4. When issue arises? • 1. Before probate (not often) • 2. After probate (most common)

  5. Who raises issue? • 1. Personal Representative • 2. Beneficiaries and heirs

  6. Ambiguity

  7. 1. Patent Ambiguity • Ambiguous on its face • “I leave &^,#@( to Erica Evans.” • “I leave my zdcix to Chad Decker.” • “I leave _____________ to Ryan Nichols.”

  8. 2. Latent Ambiguity • Makes sense on face but cannot be carried out as written. • “To my sister Pat.” • Testator has a sister named Chris and a brother named Pat. • “I leave my car to X.” • Testator owns three cars. • “I leave my house at 15426 Comstock to X.” • Testator owns a house at 15428 Comstock.

  9. 3. No Apparent Ambiguity • Meaning is clear but can extrinsic evidence be used to “create” an ambiguity? • Jurisdictions are divided: • Clear meaning rule, or • Admit extrinsic evidence

  10. Integration

  11. 1. External Integration • Putting together different documents to create testator’s will. • How to avoid problems?

  12. 2. Internal Integration • Continuity within instrument. • Goal = avoid fraudulent page insertion/substitution • How to avoid problems? • See pp. 182-183

  13. Incorporation by Reference

  14. Basic Idea • Treat written material that is not physically part of the text of the will text as being in the will. • A “legal fiction” (pretending).

  15. Requirements • 1. Testator must intend to incorporate.

  16. Requirements • 2. Incorporated writing must be in existence when testator executes the will.

  17. Requirements • 3. Incorporated writing must be reasonably identified.

  18. Issues • 1. Validity of incorporated writing irrelevant.

  19. Issues • 2. Codicil incorporates will (basis of republication)

  20. Issues • 2. Codicil incorporates will (basis of republication) What result if: • a. Valid will + Valid codicil

  21. Issues • 2. Codicil incorporates will (basis of republication) What result if: • b. Valid will + Invalid codicil

  22. Issues • 2. Codicil incorporates will (basis of republication) What result if: • c. Invalid will + valid codicil

  23. Interpretationand Construction[continued]

  24. Facts of Independent Significance

  25. Basic Idea • Can we look outside the four corners of the will to ascertain at-death property distribution?

  26. Defined • Something which has a legal purpose independent of disposing of property at death. • Thus, can be effective to impact new owner of property without compliance with will formalities.

  27. Examples • 1. Safe deposit box contents

  28. Examples • 2. Note in desk drawer

  29. Examples • 3. Identity of class gift members

  30. Examples • 4. Evidence to resolve ambiguities

  31. Examples • 5. Non-probate transfers

  32. Examples • 6. Tagging items of personal property To my daughter, Doris.

  33. Tangible Personal Property Document

  34. Pour Over Provisions

  35. Defined • Will provision leaving property to inter vivos trust. • Why used? • __________ • __________ • __________ • __________ Will Trust

  36. Historical Development • 1. Not allowed.

  37. Historical Development • 2. Incorporation by reference.

  38. Historical Development • 3. Facts of independent significance.

  39. Historical Development • 4. Codification • Uniform Testamentary Additions to Trusts Act (1960) • Uniform Testamentary Additions to Trusts Act(1991) • State tinkering with Uniform Act(Ohio § 2107.03)

  40. Authorization of Technique • Expressly authorizes pour over technique.

  41. Types of trusts into which pour overs allowed • 1. Trust created by testator • Before or at time of will execution = OK • After will execution = ??

  42. Types of trusts into which pour overs allowed • 2. Trust created by another person • Before or at time of will execution = OK • After will execution = ??

  43. Types of trusts into which pour overs allowed • 3. Can pour over funds be the initial trust funding? • Traditional/Ohio view = no • Modern view =yes

  44. Types of trusts into which pour overs allowed • 4. Cannot pour over into revoked or terminated trust.

  45. Governance of poured-over property • Amendments made after will execution: • Before the testator’s death? • After the testator’s death?

  46. Precatory Language

  47. Defined • Serious request but not legally binding. • Examples: • “I hope” • “I would like” • “I recommend” • “I wish”

  48. Ramifications • 1. To restrict or limit gifts • Generally ineffective.

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