COLUMN: Legal Chat - What to do when a will is not clear

Q. My late grandfather’s will includes some instructions that are ambiguous. Depending on how you read it, either my sister or I should receive his antique cars. What do you do when a will has ambiguous language?

A. It is not uncommon for a last will and testament – especially if it is drafted without a lawyer’s assistance – to contain unclear or contradictory directions. Unfortunately, the person who made the will, referred to as a “testator,” is not able to clear up the confusion. That task, instead, sometimes falls on the courts.

During the estate administration process, a court’s objective is to ensure the testator’s instructions are properly carried out. That could prove difficult, for example, if the testator referred to his or her property in general and overlapping terms. To achieve the goal of distributing a testator’s assets as intended, “a sympathetic reading of the will as an entirety” is required, as the New York Court of Appeals called for in Matter of Fabbri.  As stated within the Fabbri matter, this sympathetic reading requires consideration of the “facts and circumstances of the will’s framing,” it does not include a mechanical reading that takes a narrow view. As reaffirmed in Matter of the Estate of Elizabeth H. B., a subsequent matter with similar circumstances, the will must be considered as a whole.

Courts can rely on everything from the rules of grammatical construction, to what is called the “last antecedent doctrine” to help them determine intent. The New York County Surrogate’s Court in Matter of the Judicial Settlement of the Account of Marianne C. Gourary (2011) warned, however, that these methods “are not, in themselves, dispositive and, indeed, when literally applied, often lead to opposite results.” The Gourary matter, for example, involved a will contest between a deceased testator’s wife and her son. In his will, the testator left to his wife “[a]ll household furniture and furnishings, books, pictures, jewelry and other article of personal or household use.” Outside of this bequest, two-thirds of the residuary (i.e. remainder) of his estate was to go to his wife and the remaining third was to go to his son. The will contest arose over whether the “books…and other article of personal or household use” that the testator left to his wife included his $5.2 million collection of rare books, or just novels and other books he had read and kept. If the antique books were not included in this category, then a portion of them would pass to the son through the residuary estate.

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