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Ambiguity and Extrinsic Evidence in Will Construction

Written by on Feb 17, 2009| Posted in: Probate Litigation

Third District Finds Latent Ambiguity in Will Language and Allows Parol Evidence to Determine Testator’s Intent

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.”

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