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.

What type of Proceeding is a Will Contruction Action?

Under the Florida Probate Code, as in most other jurisdictions, proceedings to construe a will are adversary proceedings, unless otherwise ordered by the court, in which the moving party must give formal notice to all interested parties. After service of formal notice, the proceedings are to be conducted, as nearly as practicable, similar to suits of a civil nature and are to be governed by the Rules of Civil Procedure.

One of the most challenging components of a will construction case is the issue of whether and to what extent is extrinsic or parol evidence admissible to show the testator’s intent? The answer typically rests on the court’s determination of whether or not there exists an ambiguity in the language used in the will. If the answer to that question is yes, then the case can move forward with the presentation of evidence extrinsic.
What type of Evidence is Used to Determine the Proper Interpretation of a Will?

Parol evidence plays a role in will construction cases when there is a latent ambiguity in the will. A latent ambiguity arises when:

(1) it is sought to apply the words of the will to the subject of the bequest or devise, and it is not clear how the language is to be applied;
(2) latent ambiguity arises when applying the words of a will to the subject matter of a devise or to a devisee renders the will ambiguous.;
(3) 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.

Thus, it is well settled law in Florida and most other jurisdictions, that extrinsic or parol evidence may be admissible to supply, contradict, enlarge, or vary the words of a will or to explain the intention of the testator.

The reason why courts allow extrinsic evidence in cases involving a latent ambiguity in a will is to allow the court to be placed in the testator’s position so that it may be able to understand and apply the language of the will and give effect to it so far as the intention of the testator can be determined.

In addition to all the issues centering around the probate court’s decision to admit or not admit extrinsic or parol evidence, lawyers also frequently argue that the court must consider the weight and sufficiency of evidence. Generally, this means that in order for a court to discipher what a testator’s true intent was, more is required than simply the uncorroborated testimony of one person.

What is the Burden of Proof in a Proceeding for Construing a Will?

With respect to the burden of proof, in a proceeding to construe a will, the burden is on one asserting that a bequest is specific to show conclusively that it is so, and the showing must be supported by something in the will.

Third District Speaks on Issue

These general principals of law were recently examined and applied to the specific fact pattern presented to the Third District Court of Appeals in Garcia v. Celestron, et al. -So.2d–; 34 Fla.L.Weekly D278a, 2009 WL 248211 (3rd DCA February 4, 2009). In Garcia, the court dealt with a suit filed by three of the decedent’s beneficiaries who claimed that the will required one of the beneficiaries, Mercy Garcia (who was also the decedent’s daughter and personal representative) to sell her late father’s house and divide the proceeds among the beneficiaries. Garcia argued that the will gave her a life estate in the property, and thus permitted her to rent out the property and keep monies derived from the rent.

The will left the decedent’s house to his widow, and should she predecease him, the property was to be divided among six named family beneficiaries. The will then provides as follows:

“I further leave a life estate in said property to my daughter, Mercy Maqueira [Mercy Garcia], so that she may live in and enjoy this property. . . . Upon her death, the property shall be sold and the proceeds divided equally among those living at the time of my death so named herein. . . . If Mercy so desires, she may sell this property at anytime and divide the proceeds as above stated.”

The critical question for the probate court was whether the language “so that she may live in and enjoy this property” made the life estate determinable, requiring Mercy to either live in the property or sell it, or whether the allowed her to choose whether to live in it or not.

The probate court believed the will was ambiguous and as discussed above, then allowed the parties to introduce extrinsic evidence of the testator’s intent. This evidence revealed that Mercy did not live in the house, but rented it out, and that she had no intent to live in the house. Based on these facts, the probate court concluded that the decedent intended that Mercy be provided with a place for her and her children to live, and that if Mercy did not live in the property, it should be sold and the proceeds equally distributed among the six listed beneficiaries. The probate court ordered the property to be sold because Mercy did not live in it and evidenced no intention to live in it in the future.

The case worked its way to the Third District Court of Appeals who agreed with the probate court:
“We agree with the trial court that the provisions of the will are ambiguous. As such, the trial court correctly received parol evidence in order to resolve the apparently contradictory provisions. See Perkins v. O’Donald, 82 So. 401 (Fla. 1919) (holding that parol evidence may be received if the will is in some way ambiguous, in order to ascertain the testator’s intent); Harbie v. Falk, 907 So. 2d 566 (Fla. 3d DCA 2005); Campbell v. Campbell, 489 So. 2d 774, 776-777 (Fla. 3d DCA 1986); Hulsh v. Hulsh, 431 So. 2d 658 (Fla. 3d DCA 1983); In re Estate of Rice, 406 So. 2d 469 (Fla. 3d DCA 1981). The trial court based its findings on competent, substantial evidence, and we thus affirm the final judgment.”