Blogs from August, 2009


Ruling Places Emphasis on Family Affection in Will Construction Case

Frequently, probate litigators are called upon by clients to ask a probate judge to interpret an ambiguous clause in a Will that invariably directly affects the substantive rights of the beneficiaries.  An opinion released today by the Third District serves as a reminder for the basics of will interpretation.

The vehicle I use most often to seek a judicial interpretation of the language of a will is through a petition for declaratory judgment.  Under Fla.Stat. §86.021 any person claiming to be interested or who may be in doubt about his or her rights under a will may ask a probate judge to determine his or her rights under any written instrument.  Alternatively, under §86.041 any person interested as or through an executor, administrator, trustee, guardian, or other fiduciary, creditor, devisee, legatee, heir, next of kin, or cestui que trust, in the administration of a trust, a guardianship, or of the estate of a decedent, an infant, a mental incompetent, or insolvent may have a declaration of rights or equitable or legal relations in respect to any trust or estate. 

Although there are rules of construction to assist the probate judge in making a decision, more often than not, the most critical factor in the judge’s ruling is evidence relating to family relationships and interactions by and between the person who wrote the will and those affected by the ambiguous language.  The importance of the parties’ ties and affection is illustrated in the opinion released by the Third District in Chin v. Chin, –So.–, 34 Fla.L.Weekly D1583b (Fla. 3rd DCA August 5, 2009). 

Chin involved a will drafted by Adolph Chin, who died as co-owned of property in as tenants in common with his sister, Mary Chin. Adolph and Mary both lived on this property. David Chin, Adolph’s son, was named personal representative of Adolph’s estate.

The Probate court, using the Summary Administration procedure, transferred to David an immediate half interest in the property. Subsequently, David filed suit against Mary Chin to partition the subject property and force its sale.

As expected, Mary objected to the partition and argued that she was entitled to a life estate in the property under paragraph seven of the will, which stated:

“I direct that property held by me in co-ownership with my brother the said Earl Anthony Chin and with my sister, Mary Victoria Chin, shall not be sold as long as my said brother or sister desires to occupy same.”

Mary argued, that this ambiguous language meant that Adolph intended to devise a life estate for each sibling with whom he co-owned property.

Importantly, the Third District declared that “hen interpreting ambiguous provisions of a will, courts may look upon the situation of the parties, such as ties and affection between the testator and his or her legatees.”

Next, the Third District, reviewing Judge Rothenberg’s decision on a de novo standard, agree with the probate judge’s finding that paragraph seven grants a life estate to Mary Chin. The court reasoned that since Adolph shared a separate residence with each sibling, this was strong evidence that he did not have the intent to dispossess his siblings of their homes after his death.

Hats off to the Third District for not getting caught up in technical legal arguments that are contrary to common sense.  Here, the pivotal fact in the case was the evidence adduced at the trial of the affection between Adolph and his sister suggested that he would not have wanted to disinherit her.


Most Recent Posts from August, 2009