How to Resolve Ambiguous Language in Wills and Trusts
In this article, we provide will/trust ambiguous language examples, discuss the differences between latent and patent ambiguity and go over the legal remedies for ambiguous terms in a will or trust.
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Estate planning software and document preparation services have made it easier than ever for people to create and execute their estate planning documents without having to involve a lawyer.
Unfortunately, as simple and budget-friendly as these methods may seem, they are not viable substitutes for a skilled estate planning attorney, and any inadvertent trust and last will and testament mistakes by their users can actually end up costing them or their surviving family members more in the long run. Some of the most frequent trust and last will and testament mistakes our probate attorneys see occur when ambiguous terms are included in the document. Consider the ambiguous language examples that follow.
Perhaps the decedent made the same gift to two different beneficiaries in their will. In one provision, they left their home to their grandchildren. In a later provision, they left their home to their surviving spouse.
Perhaps the decedent was not specific enough in the language of their trust. They left property to a beneficiary, but failed to mention the last name of the beneficiary. Since that provision of the trust could apply to two of the decedent’s family members, it is unclear to whom the parcel of property should go.
Perhaps there are typos in the will that are significant enough to cause confusion about the assets and beneficiaries of the estate. While typos in legal documents are not always problematic, they are in this instance since they obfuscate the creator of the will’s intent.
It can be frustrating for the loved ones of decedents to have to deal with the effects of ambiguous language in a decedent’s will or trust while they are dealing with the grief of their loss; however, failing to take action could prove detrimental.
For example, if a trustee has already made trust fund distributions to beneficiaries, and you notice after the fact that one of the provisions of the trust instrument contained ambiguous language, it might be too late to do anything about it. It would have been ideal for you to have had a trust lawyer inspect the document upon receiving it for any latent and patent ambiguities. This way, if any were found, your attorney could have taken the proper steps to resolve them.
If you have recently lost a loved one, regardless of whether you believe their will or trust contains ambiguous terms, it is a good idea to have a qualified probate attorney inspect the document, not just for ambiguous language but also for any other issues that might call its validity into question (see grounds for contesting a will or trust).
Latent vs. Patent Ambiguity
Ambiguous language can either be considered a patent ambiguity or a latent ambiguity. We go into the meaning of patent ambiguity and latent ambiguity in the following subsection.
A patent ambiguity occurs when the language of the document has more than one meaning and it is visible on the face of the document.
Patent ambiguous language examples in wills and trusts:
- A provision of a decedent’s will names beneficiaries but fails to mention the gift being made to them.
- Two provisions of the same trust make the same gift of real property to two separate beneficiaries.
- A provision of a will leaves a proportional interest of the estate to one beneficiary and another provision leaves an incompatible proportional interest of the estate to another beneficiary (e.g., both provisions leave 60% of the estate to the beneficiaries, and since it doesn’t make mathematical sense to dispose of 120% of an estate, it would be considered a last will and testament mistake).
- There was a scrivener’s error (an unintentional mistake in the drafting of a contract), such as the use of boilerplate language that does not apply to the creator of the will or trust’s circumstances.
A latent ambiguity occurs when the problematic language is not readily visible on the face of the document but becomes apparent when the executor or trustee attempts to fulfill the ambiguous terms.
Latent ambiguous language examples in wills and trusts:
- A provision of decedent’s will leaves a gift to the decedent’s nephew, but the decedent has several nephews, and their will fails to identify the name of the nephew for whom the gift is intended.
- A provision of a decedent’s trust lists an incorrect address for a real property the decedent owned.
- The decedent used a beneficiary’s nickname in their will instead of the beneficiary’s real name.
Both latent and patent ambiguities in wills and trusts can potentially be resolved by the courts; however, the courts will only go so far when it comes to interpreting ambiguities. We’ll discuss the court’s process for interpreting ambiguous language in the forthcoming section.
- Hire a probate lawyer to inspect the will or trust instrument.
Depending on the category of ambiguous language you are dealing with (i.e., a patent ambiguity or latent ambiguity), it may not be readily apparent to you that there is a problem with the decedent’s will or trust. That is why, regardless of whether you suspect a decedent’s will or trust to have ambiguous terms, it is recommended you speak with a qualified probate attorney as soon as you learn you are an executor or trustee, or a beneficiary.
Probate attorneys work with wills and trusts day in and day out so they can easily detect when a will or trust is problematic on account of ambiguous terms. By inspecting the document, they may also catch other red flags that call the document’s validity into question. (If you are concerned about the validity of a will or trust, visit our will and trust contest page.)
This step should be taken early on, preferably as soon as you receive a copy of the decedent’s will or trust.
If your lawyer agrees that the will or trust does have ambiguous terms, they may suggest filing a type of claim known as a Petition for Instructions with the court. We will go more into Petitions for Instructions in the third step.
- Gather extrinsic evidence that could provide clarification about the ambiguous language.
When a will or trust has ambiguous terms, the executor or trustee, respectively, might know the true meaning of those terms (on account of their having been close with the decedent), but they should still not take it upon themselves to interpret them because doing so could lead beneficiaries to believe they are choosing sides, resulting in a potential personal liability.
Instead, as soon as it is evident that a will or trust contains ambiguous language, it is best to start looking for extrinsic evidence that could provide some insight into the decedent’s true final intentions. For example, you may want to speak with the drafter of the document to see if they recall the meaning of the ambiguous terms.
When attempting to resolve ambiguous terms, the court will always look to other parts of the document first to see if the meaning of the ambiguity can be deduced. If it cannot, the court may allow extrinsic evidence to be introduced. While there is no guarantee the court will consider extrinsic evidence in an ambiguous language estate or trust matter, it is always a good idea to be prepared in case it is needed to resolve the ambiguities.
- File a Petition for Instructions with the court.
If a determination or agreement surrounding the ambiguous language in a decedent’s will or trust cannot be reached outside of court, a Petition for Instructions will generally need to be filed with help from a probate lawyer. It is usually the trustee or executor who files a Petition for Instructions in an effort to avoid personal liability.
Once the Petition for Instructions is filed, it will be up to the judge to decide whether a patent ambiguity or latent ambiguity is present in the document, and, if so, whether that ambiguity can be resolved by examining the other parts of the document. If it can’t, the court may consider extrinsic evidence, such as any relevant documentation and testimony concerning the settlor or testator’s intent.
It is always the desire of the court to honor the decedent’s true final intentions. To do this, the court will try to ensure that every clause in the document is given some meaning that fits together as a whole. In other words, if resolving an ambiguity in favor of one beneficiary cancels the inheritance of another beneficiary who was mentioned in the will, the court will likely move to resolve it another way.
Let’s suppose, for example, that a decedent leaves the family home to their grandchildren in their will but also provides for their spouse to reside in the home for their lifetime. The court generally will not favor the spouse over the grandchildren or vice versa, since it is evident the decedent intended to leave a gift to both parties. Instead, it may propose for the spouse to pay the grandchildren rent.
In a Petition for Instructions case Keystone worked on, the judge required the parties affected by the ambiguous terms of a trust to attend a Mandatory Settlement Conference to resolve the matter.
What If Ambiguous Language Causes a Gift to Fail?
If the court cannot successfully resolve the ambiguous terms of a will or trust through examining the other parts of the document and extrinsic evidence, then the court may deem the gifts being made through the ambiguous terms “failed gifts,” which become a part of the decedent’s estate. In California, failed gifts will be distributed to the decedent’s heirs in accordance with the state’s intestate succession laws.