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.

The dramatic increase of cases challenging the validity of wills based on the deficient mental capacity of the person making the will has been measured, verified, and commented on by many legal observers. The reason for the increase in probate litigation is subject to debate; however, I have found in my discussions with other trust and estate practitioners that most will agree the relevant factors causing the increase include the rapidly growing number of older persons with medical and psychiatric problems affecting their mental and cognitive ability; the tremendous transfer of wealth taking place between the World War II and baby boomer generations and the change in the traditional nuclear family. See Daniel Marson and Laurie Zebley, The Other Side of the Retirement Years: Cognitive Decline, Dementia, and Loss of Financial Capacity, 41 Ret.Plan. 30 (2001); Harold T. Nedd, Fighting Over the Care of Aging Parents: More Siblings Clashing Over Money and Control, USA Today, July 30, 1998, at 1A.

Florida and many states, through adoption of relevant portions of the Uniform Probate Code and decisional case law, require that in order for a person to make a valid will, the person must: (1) understand the nature of the testamentary act; (2) understand and recollect the nature and situation of his or her property; (3) have knowledge of the persons who are the natural objects of his or her bounty; and (4) know the manner in which the disposition of the property is to occur.

Just how does one go about determining whether a person possesses the requisite mental capacity to make a will? Many people believe that one of the safeguards against having people who lack testamentary capacity making wills is the presence of a lawyer involved in the will drafting and execution process. See James E. Spar and Andrew S. Garb, Assessing Competency to Make a Will, 149 Am.J.Psychiatry 169 (1992) and Arthur C. Walsh et al., Mental Capacity: Legal and Medical Aspects of Assessment and Treatement, Tax & Estate Planning Series (1994). The American Bar Association and others have encouraged practitioners to use a Legal Capacity Questionnaire. This test was created by and for attorneys to assist them in dealing with the issues of client testamentary capacity prior to making a will. It has been described as the best “capacity screening tool for attorneys engaged in probate law practice with older clients and clients with cognitive disabilities.” Daniel Marson, Justin S. Huthwaite and Katina Hebert, Testamentary Capacity and Undue Influence in the Elderly: A Jurisprudent Therapy Perspective 28 Law & Psycho.Rev. 71 (2004).

The Legal Capacity Questionnaire

The Legal Capacity Questionnaire is separated into three sections (general information, a client information section, and the questionnaire). The form requires the client to answer true/false questions, provide client information and provide open-ended decisions. A scoring system is used to assess capacity and provide guidance for attorneys. For those situations where a client scores “high capacity” the attorney may go ahead with the will preparation and execution “with confidence.” Other scores may categorize the client with “borderline capacity” or “low capacity” and the attorney is then required to perform further investigation and perhaps consider a referral to a professional for a formal diagnosis. However, my experience with the form reveals that one of its weaknesses is it fails to address the issue of whether the person actually understands a will and also fails to look into the issue of whether the person has been unduly influenced in their estate planning objectives.

The Testamentary Capacity Instrument

In my view, the limitations of the Legal Capacity Questionnaire may be remedied through application of a psychometric instrument developed by Daniel Mason and discussed in his article cited above. This instrument is known as the Testamentary Capacity Instrument (TCI). The TCI measures capacity according to the four elements for testamentary capacity required by Florida Law and discussed above. Importantly, each element is based on the person’s ability to recall or remember information pertinent to the execution of a will. More importantly, however, is the TCI’s section that tests the person’s susceptibility to undue influence.

The Legal Capacity Questionnaire and the Testamentary Capacity Instrument are the only clinical models that I have found in my practice that address testamentary capacity. The lack of models is a shortcoming of our probate law and a detriment to the public generally. This is especially true in light of the recognized increase in the need for resolution of legal disputes concerning inheritance and property disposition among our elderly population. We need to find a way to incorporate the advancements and achievements of mental health science and practice into our probate practice and discover methods for psychological clinicians to contribute to probate litigation.

Surprisingly, there has been very little in the way of studies that have examined undue influence and testamentary capacity. One of the more well known studies conducted by used survey data from probate judges across the United States on the issues of mental capacity and undue influence. The study concluded that probate judges demonstrated a “broad conception of undue influence” and a complete lack of any consensus or agreement among judges as to a time-line loss of different legal capacities. See James Spar et al., Assessing Mental Capacity and Susceptibility to Undue Influence, 13 Behave.Sci.&L. 391 (1995).

One way we can all begin to advance in this area is for probate practitioners to learn appropriate conceptual knowledge, clinical procedures, specialized knowledge of the elderly and disorders of aging, and the tests described above. This will be easier to accomplish with help from the medical and psychological profession. Further, probate practitioners need to know when they have a sufficient evidentiary foundation for making conclusions regarding testamentary capacity and undue influence.

Flush It Down the Toilet!

The Law

Florida is one of several states that have a strict requirement for revocation of a person’s Will. Florida law allows a person to revoke their will by either written instructions, or by physical act. For revocation by writing, the document must be a subsequent Will, codicil, or other writing executed with the same formalities required for the original Will (signed at the end and witnessed.) See Fla.Stat. §732.505.

Florida Statutes section 732.506 sets forth the requirements for revocation by act:

“A will or codicil is revoked by the testator, or some other person in the testator’s presence and at the testator’s direction, by burning, tearing, canceling, defacing, obliterating, or destroying it with the intent, and for the purpose of revocation.”

What about flushing it down the toilet?

I’ve heard of criminal cases where there is relevant evidence involving things being flushed down the toilet, but what about in the context of probate litigation? Is a Will properly revoked if it is torn up and flushed down the toilet? This very question was raised in Estate of Adrian Bancker, 232 So.2d 431 (Fla. 4th DCA, 1970) a case that began in Broward County when Adrian G. Bancker died survived by his wife, three natural children and step daughter. Mr. Bancker executed a Will, but became disenchanted with his attorney who drafted the Will and who named himself the alternative executor. The decedent’s first attorney, who drew up an earlier Will, informed the decedent that he could reinstate the first Will by destroying the later Will. The decedent subsequently directed his wife, step-daughter, and her husband to destroy the later Will.

The decedent remained in his bed, although he was not bedridden, while his wife, step-daughter, and her husband went into another room, removed the Will from a wall safe and destroyed it by tearing it into pieces and flushing them down a toilet. The decedent’s bedroom was separated from the den in which the wall safe was located by a screened terrace. The doors were closed between the decedent and the wall safe and he could not see the destruction. He was informed subsequently that it had been done and he nodded his head in approval.

After Mr. Bancker died his widow presented the first Will for probate and obtained letters testamentary. The natural children attacked this Will, alleging lack of testamentary capacity and undue influence. At this point the widow countered by attempting to re-establish the later Will that was flushed down the toilet for probate. The Broward County judge ruled that Mr. Bancker died intestate.

Don’t Hide in the Bathroom

However, the Fourth District Court of Appeals reviewed the record and reversed, finding that the Will was not properly revoked. Essential to the Court’s ruling was the fact that the statute cited above, must be strictly complied with in order for revocation to be effective. Because Mr. Bancker was not in the bathroom when the Will was flushed down the toilet, he was not “present” and the attempted revocation was legally ineffective.

The law’s requirements for strict compliance with the revocation statute are consistently upheld by Florida Courts. For example, in Dahly v. Dahly, 866 So.2d 745, 29 Fla. L.Weekly D404 (Fla. 5th DCA 2004) the Court declined to revoke a Will even where the testator:

• Crossed out the name of the designated personal representative; • Placed the word “delete” over several paragraphs of the Will; and • Placed his signature with words instructing someone to draw up a new Will incorporating the changes.

I have been on both sides of these cases and have found that Courts usually are persuaded, not by facts indicating what room the testator was in, but more importantly, what was the testator’s intent? This is usually proven through statements to other people, conduct towards people involved as beneficiaries or otherwise interested in the estate, and sometime extrinsic writings that may or may not qualify as a formal testamentary instrument under the law, but still relevant to a determination of the testator’s intent.

As a probate litigation attorney, I frequently stipulate to a variety of things as a matter of professional courtesy and/or for judicial economy and efficiency. However, as the opinion released today by the First district Court of Appeal reminds us, stipulations have implications and consequences that are sometimes visible only to an experienced eye.

In McKormick v. McKormick, 33 Fla.L.Weekly D2309b (Fla. 1st DCA, 1D07-6249, September 29, 2008) the decedent died in 1999. In 2006, after no will was filed and no estate opened, the decedent’s son, Timothy, filed a petition for administration of his father’s estate as an intestate proceeding and sought appointment as personal representative and he was so appointed the following day on an ex parte basis. In 2007, the decedent’s other son, Lee, filed and served a counter-petition for administration. In the counter-petition, Lee identified the decedent’s last will and testament, proffered the same for administration, and sought appointment as personal representative of the decedent’s estate based upon decedent’s nomination of Lee in the Last Will and Testament. The counter-petition also sought revocation of the previously issued letters of administration toTimothy.

Before the hearing in probate court, the parties stipulated to admission of decedent’s Last Will and Testament to probate. After hearing, the probate court ruled that Timothy could continue to serve as Personal Representative.

The First District reversed the Probate Court’s continued appointment of Timothy. The appellate court relied on section 733.301(1)(a) of the Florida Probate Code, which states that when granting letters of administration, the probate court shall, in testate estates, allow preference to the personal representative nominated by the will. “Nothing in section 733.301(1)(a) purports to vest discretion in the trial courts to disregard the preference there specified, as long as the personal representative nominated by the decedent is statutorily qualified to serve.” Warner v. Estate of McCloskey, 943 So. 2d 1007, 1008 (Fla. 1st DCA 2006). The First District Court of Appeals also relied upon section 733.301(5) of the Florida Probate Code which provides that after letters have been granted in either a testate or an intestate estate, if any will is subsequently admitted to probate the letters shall be revoked and new letters granted. Therefore, by stipulating to admission of the will to probate, Timothy waived any objections to the counter-petition advancing the will and seeking to procure appointment of Lee as personal representative.

This is an important reminder to think through all the consequences of a stipulation in the context of a will contest or similar probate litigation proceedings.