Latent vs. Patent Ambiguities in Last Will and Testament Construction Cases
Lawyers and probate courts are frequently asked by relatives of a deceased to consider evidence well beyond the four corners of a last will in determining the “true” donative intent of the testator. However, courts, at least in Florida, are generally bound by the language of a person’s last will and testament unless there is some ambiguity warranting the court’s examination of extrinsic evidence.
There are two types of ambiguities in the typical last will and testament construction cases:
A last will is “patently ambiguous” if it is ambiguous on its face. Patent ambiguities usually result in the probate courts finding that there is no valid will in effect and no extrinsic evidence is permitted. Some courts have held that where there is a patent ambiguity as to the testator’s intent, the probate court may consider extrinsic evidence. Remember extrinsic is evidence that is not within the document (in this case the Last Will) but instead comes from outside or external sources.
A “latent ambiguity” arises when it is not clear how to apply certain words of a last will to a specific gift. One court has described a latent ambiguity as arising when the words of the will are applied to the subject of devise or bequest, and those words apply to and fit without ambiguity indifferently to each of several things or persons. Kernkamp v. Bolthouse, 714 So.2d 655 (Fla. 5th DCA 1998).
A recent case in one of our sister states examined the differences between a court’s treatment of these two types of ambiguities and the unique results that follow once a court determines to which category a last will and testament’s ambiguous language belongs.
In Horadam v. Stewart, 2008 Tenn.App. LEXIS 601, the probate court was initially presented with a petition from Dr. Victor Horadam seeking an interpretation of the last will and testament of Andre Alice Norton. Ms. Norton was a famous author of science fiction books and the royalties from those books were a significant portion of her probate estate. The last will at issue named Dr. Horadam as a beneficiary of a specific bequest and appointed Sue Stewart as Executrix of Ms. Norton’s estate. Ms. Stewart, along with her husband, was also named the beneficiary under the residuary clause. The provisions of the Will the Court was asked to interpret read as follows:
SECOND, I give devise and bequeath the following property, real, personal and mixed to the following persons, to wit: . . . . H. To the following individuals, I give the copyrights of the books upon which the following were collaborators with me, to wit: To Mercedes Lackey . . . Elvenbane Elvenblood, and Elvenborn; To Pauline Griffin . . . Redline the Stars, and Fire Hand; To Sherwood Smith . . . Derelict for Trade, A Mind for Trade, Echoes in Time and Atlantis Endgame; To Sasha Miller . . . To the King a Daughter, Knight or Knave, A Crown Disowned and Dragon Scale Blade. . . . . FIFTH, To Victor Horadan [sic], MD, 6054 Aberdeen, Dallas, Texas, 75230, I give my blue notebook containing the listing of all of my books, the royalties from all posthumous publication of any of my works, and all of the trophies, plaques, etc., which I have received during my writing career. SIXTH, All the rest and residue of my property, I give to Sue Stewart and husband, Ollie Stewart, who have faithfully cared for me over an extended period of time.
Specifically at issue is the “FIFTH” paragraph which must be interpreted to determine the decedent’s testamentary intent of what exactly constitutes “the royalties from all posthumous publication of any of my works. . . .”
In his petition, Dr. Horadam specifically requested “a finding that the description of the bequest is clear in expressing the intent of the Testatrix, but lacks certainty and precision in defining the meaning of what types of publications (regarding both location and media format) are within the intent of the Testatrix.” The probate court allowed a significant amount of witness testimony to be introduced at trial, including that of Dr. Horadam, Sue Stewart, and Attorney Jerry Scott, scrivener of Ms. Norton’s will. Mr. Scott testified by deposition about drafting several versions of Ms. Norton’s last will as well as her participation and instruction in developing the final document. Dr. Horadam presented an expert on copyright law and Ms. Stewart offered experts in the field of literary publishing, each providing opinion testimony on the meaning of the words at issue. She also proffered a number of witnesses who testified that Ms. Norton expressed her intent to leave everything to the Stewarts prior to her death.
The case worked its way through the court system and finally rested in the appeals court in Nashville, Tennessee. The first issue for the court was the question of whether Ms. Norton’s bequest of “the royalties from all posthumous publication of any of my works” is ambiguous. If so, the court would then have to decide whether the ambiguity was a patent ambiguity, which precludes extrinsic evidence, or whether the ambiguity was a latent ambiguity, which permits extrinsic evidence of a testator’s intent.
The Tennessee court observed that some jurisdictions make no distinction between latent and patent ambiguities when admitting parol or extrinsic evidence to identify, explain, or define the subject matter imperfectly described in a writing. See, e.g., Battle v. Wolfe, 283 S.W. 1073 (Tex. App. 1926) (noting express repudiation of the rule distinguishing patent and latent ambiguity if extrinsic evidence is necessary to identify subject matter); Cumberledge v. Brooks, 235 Ill. 249, 85 N.E. 197, 199 (Ill. 1908) (holding the admissibility of parol proof not dependent on distinction between patent and latent ambiguity); Armistead v. Armistead, 32 Ga. 597 (1861) (criticizing distinction as “wholly unphilosophical”).
The court then described a patent ambiguity as one that “exists when the ambiguity results from the language or wording in the instrument. A patent ambiguity is one that clearly appears on the face of a document, produced by the uncertainty, contradictoriness, or deficiency of the language of an instrument, so that no discovery of facts, or proof of declarations, can restore the doubtful . . . sense without adding ideas which the actual words will not themselves sustain. A patent ambiguity exists, for example, when two different prices for the same goods appear in a contract of sale creating a contradiction of terms on the face of the agreement. The trouble with patent ambiguities is that extrinsic evidence cannot remove the difficulty without putting new words into the mouth of the testator, which in effect would be to make a will for him.”
The appellate court determined the language constituted a latent ambiguity and then examined the testimony of all the witnesses and found that since Ms. Norton had previously disposed of the full copyrights to her co-authors and without expressly reserving any rights incident to those copyrights, it could not infer that Ms. Norton intended to give the royalties generated from those collaborative works to Dr. Horadam. The court then concluded:
“Upon review of the Last Will and Testament of Andre Alice Norton, we hold that a latent ambiguity existed in the bequest to Dr. Horadam of “the royalties from all posthumous publication of any of my works.” Having carefully reviewed the record, the applicable law, and the entirety of the evidence presented, including evidence of Ms. Norton’s intent in Ms. Stewart’s offer of proof, we conclude that the trial court erred in its interpretation of the Will.”
As this case illustrates, courts and lawyers can differ on their categorization of whether an ambiguity is latent or patent. This starting point in the legal analysis can have significant implications for probate litigants such as Dr. Horadam or others similarly situated. Unfortunately, even with relatively clear definitions of what is a patent or latent ambiguity, two experiences law firms and two sets of experiences judges reached exact opposite conclusions.