Unclear Will or Trust in New York

A well-written will or trust should be clear and easy to understand. It specifies which assets go to which beneficiaries, and what happens when circumstances change. When a will or trust is unclear, the beneficiaries will start a court proceeding for construction or reformation, asking the court to interpret the will or trust.

What is an Ambiguity in a Will or Trust

Here are some examples of an ambiguity in a will or trust:

• The decedent left the house to “my sister” or “to John”
• The decedent left a bank account to “Christian Charities” without specifying a particular one
• The executor left a building to his son John but did not specify which building
• The executor named in the trust is no longer alive

Reformation If there is no way to determine the intent of the deceased, the court might insert its own words into the document. This process is called “reformation”.

Call the Law Offices of Albert Goodwin at (212) 233-1233 to make an appointment to discuss your will or trust contest.

How New York Courts Interpret an Ambiguous Document

When a will or trust contains language that can reasonably be read in more than one way, the Surrogate's Court has to decide what the document means before the estate can be distributed. The procedure is called a construction proceeding when the issue is the meaning of existing words, and a reformation proceeding when the issue is whether the words should be changed to reflect the testator's actual intent. The two are different remedies with different evidentiary thresholds, but they often arise in the same case.

The first principle the court applies is that the testator's intent controls. The court reads the four corners of the document, looks at the will or trust as a whole rather than in isolated phrases, gives words their ordinary meaning unless context suggests otherwise, and tries to avoid an interpretation that would render any provision meaningless. If the document is internally consistent and the intent can be found within the document itself, the court does not go beyond the document. This is called the "four corners rule," and it keeps the analysis tightly focused on what the testator actually wrote.

Patent Ambiguity Versus Latent Ambiguity

Lawyers distinguish between two kinds of ambiguity. A patent ambiguity is one that is obvious on the face of the document. A clause that says "to my sister" without saying which sister is patently ambiguous if the testator has more than one sister. A latent ambiguity is one that only becomes apparent when you try to apply the document to actual facts. For example, "to John Smith" looks clear until you discover that the testator had a cousin John Smith and a neighbor John Smith and never made clear which one they meant.

Both types can be resolved by the court, but the court is more willing to consider outside evidence – such as letters, prior wills, or testimony from the drafting attorney – to resolve a latent ambiguity than a patent one. The traditional rule was that extrinsic evidence could not be used to fix patent ambiguities; the modern New York approach is more flexible but still places limits on how far outside the document the court will look.

Common Ambiguities in Wills and Trusts

In addition to the examples above, some of the ambiguities that come up most often in our practice include:

• Class gifts that have closed unexpectedly. A clause that leaves the residuary to "my children" requires the court to decide whether a child born after the will was signed is included, whether a stepchild is included, whether an adopted child is included, and whether a child who predeceased the testator passes through to grandchildren.
• References to property the testator no longer owns. A specific bequest of "my 2018 Honda Accord" is meaningless if the testator sold the Accord and bought a new car. The doctrine of ademption usually defeats the bequest, but in some cases the court will substitute the replacement property or the sales proceeds.
• Conflicting provisions. One clause says all property goes to the spouse, a later clause leaves specific assets to children, and a third clause names a residuary beneficiary. Reading them together can produce conflicts that have to be resolved by construction.
• Charitable bequests without an identified charity. A gift "to a charity that helps homeless veterans" requires the court to either identify a specific organization or apply the doctrine of cy pres to find a charity that fulfills the general charitable intent.
• References to outdated tax laws. Older wills sometimes include formulas tied to federal estate tax thresholds that have since changed. The court has to decide whether to apply the formula as written or to read it in light of current law.
• Powers of appointment that are imprecisely defined. A trust that gives the surviving spouse the power to appoint trust assets among the children may not be clear about whether the spouse can also appoint to grandchildren, charities, or themselves.

The Construction Proceeding

A construction proceeding is begun by petition in the Surrogate's Court of the county where the will was probated (or where the trust is administered). The petitioner is usually the fiduciary or a beneficiary whose distribution depends on how the ambiguity is resolved. The petition asks the court to declare the meaning of the disputed clause. All persons whose rights would be affected by the construction are made parties – beneficiaries, contingent beneficiaries, fiduciaries, and sometimes the attorney general if a charitable interest is involved.

Once the parties are before the court, the case can be decided on submissions if there are no factual disputes – just briefs and oral argument on what the document means. If the construction depends on facts outside the document, the court may take testimony. Drafting attorneys are frequently called as witnesses, and contemporaneous notes and drafts of the will become important exhibits.

Reformation

Reformation goes a step beyond construction. In a reformation proceeding, the court is asked to add, delete, or change words in the document to make it match the testator's actual intent. New York courts are traditionally cautious about reformation because of the concern that revising a deceased person's words can effectively rewrite the estate plan. Reformation is most often granted in cases involving scrivener's error – a typographical or drafting mistake that is clearly inconsistent with the testator's intent and supported by evidence.

Tax reformations are a distinct category. A trust that fails to qualify for a marital deduction, the generation-skipping transfer tax exemption, or another favorable tax treatment can sometimes be reformed by the court to add or correct provisions necessary for the tax result the testator clearly wanted.

Cy Pres for Charitable Gifts

If a will or trust leaves money to a charitable purpose that has become impossible or impractical to carry out, the court can apply the doctrine of cy pres – literally, "as near as possible" – to direct the gift to a similar purpose. The classic example is a bequest to a specific charity that no longer exists. Instead of letting the gift fail, the court identifies the testator's general charitable intent and selects a substitute organization that comes as close as possible to fulfilling that intent.

How to Avoid These Problems in the First Place

The best way to avoid an ambiguity proceeding is to draft the will or trust carefully in the first place. Use complete legal names, include addresses, and identify beneficiaries by their relationship to the testator. Specify what should happen if a beneficiary predeceases. Update the document when family circumstances change – a new marriage, a divorce, the birth of a child, the death of a beneficiary. Avoid copying language from forms found online without understanding how the language interacts with the rest of the document. Have an experienced attorney review the entire document before signing.

It is also worth thinking about contingencies. A will that names a specific person as executor should also name a successor in case the first person cannot or will not serve. A trust that gives a power of appointment should be specific about who can be an appointee. A residuary clause should leave nothing on the table.

Talk to a New York Will and Trust Attorney

If you are involved in a dispute over the meaning of a will or trust, we can help. We handle construction proceedings, reformation proceedings, and cy pres applications throughout New York. We also draft wills and trusts that are designed to avoid these issues, and we review older documents to identify potential problems before they cause litigation.