Mistakes in Wills – Impacts of General Descriptions vs. “Precise” Descriptions of Intended Bequests and Beneficiaries

Just as over-reliance on incompetent attorneys can have a negative impact on estate taxes for failure to file, misguided reliance in the drafting or execution of a will expressing intent of the testator may have unintended consequences as well. Wills have long been subject to mistakes throughout history, and the mistake is not always that of the drafting attorney but can be that of the testator as well.

Below we examine some instances where wills have been contested on account of mistakes, including an example of those situations where precise descriptions designed to leave no doubt as to intent, were prone to mistakes resulting in failed bequests. We will also note a growing trend in the courts to move away from the historically strict refusal to introduce evidence of the testator’s intent to reform mistakes in wills.

For a long time, and still to this day in a majority of jurisdictions, courts held to the steadfast “plain meaning” of the will rule in refusing to allow consideration of extrinsic evidence to glean the intent of the testator and reform the will in the event of a mistake. The usual justification for these strict rules is the worst evidence problem. Since a testator is unable to corroborate or refute extrinsic evidence of intent that is at odds with the language of the will, the testator is protected from fraud and error by simply excluding such evidence. In addition, courts declining to reform mistaken wills tend to have concerns of a massive increase in will litigation, believing reformation would invite disgruntled individuals excluded from the will to attempt to demonstrate extrinsic evidence of “intent” to make claim to the will.

The two opposing views (plain meaning/no reformation vs. extrinsic evidence/reform to testator’s intent) both reiterate the need for even more carefulness in ascertaining the testator’s intent and the effective drafting of the same by the drafting attorney. In the past, attorneys have sought to be careful and sought to be very specific in defining property subject to a bequest or a specific beneficiary. With the split among the states as to which view to follow, attorneys must be very careful the testator’s intent is clear so as to avoid any ambiguity during probate administration. However, as evidenced below, it may even be in the interest of the testator and the drafting attorney to state certain things in general terms.

For example, In In re Estate of Smith, 555 N.E.2d 1111 (Ill.App. 1990), the testator left a bequest to “Perry Manor, Inc., Pinckneyville, Illinois.” At the time the will was executed, Perry Manor, Inc., a Nevada corporation, operated a nursing home called Perry Manor in Pinckneyville. Before the testator died, Perry Manor, Inc., sold the nursing home to Lifecare Center of Pinckneyville, Inc. Lifecare continued to operate the nursing home under the name Perry Manor. The court gave it to the Nevada corporation, which alone fit exactly the literal description of the legatee: “Perry Manor, Inc.” Because there was no ambiguity, extrinsic evidence was inadmissible. Presumably, the testator wanted the bequest to help support the continuing operations of the nursing home located in Pinckneyville and would have been better served with a more general identification of the same, rather than having the gifted property support a foreign corporation no longer operating the home.

Also, when describing people, it is best to give the name of the intended beneficiary and state the relationship to the testator. Named beneficiaries living in large metropolitan areas may have several same named persons living in the same area, perhaps many listings in the phone book. Without a significant relation to the testator stated in the will itself, this ambiguity could lead to will contest litigation to clarify ambiguities. Even when drafters are using specific terms to identify an intended beneficiary (i.e., John Smith of Pflumm Road, Johnson County), such a description could identify more than one person. Middle names should be used if known to narrow the risk of mistake. Critical to identification, however, is the relationship to the testator (e.g. my longtime employee, my fellow Kiwanian, etc.)

Although drafting attorneys should be as careful as possible, there are those that are prone to the occasional mistake, whether it be a typo, a transposed number, a switched husband and wife will (See In Matter of Snide, 418 N.E.2d 656 (N.Y. 1981), something lost in translation or other mistake. Many courts are willing to admit extrinsic evidence of misstate by the drafter, and if proved by clear and convincing evidence, the court may reform the will to reflect the testator’s actual intent.

Thus, in In re Estate of Herceg, 747 N.Y.S.2d 901 (Sur. 2002), a residuary clause that was borrowed from an earlier will was not fully transferred into the new document, and was silent as to the intended beneficiary, leaving 10% of the estate seemingly intestate. The court noted that an obvious mistake was made and allowed extrinsic evidence of the former will naming the intended residual beneficiary, noting that the clear and convincing threshold had been satisfied. They reformed the clause as such, leaning on the trend of reformation and the Restatement.

Extrinsic evidence is meant to bring more precise meaning to terms in wills as well. In Succession of Bacot, 502 So. 2d 1118 (La. App. 1987), T left “all to Danny.” The court chose one of three lovers, all named Danny, based on extrinsic evidence showing who had the closest relationship to T.

Outside evidence may be used in the case of “personal usage” to bend the plain meaning rule. If the testator habitually used a term in a certain manner, the evidence is admissible to show that the testator used that term in accordance with his personal usage rather than its ordinary meaning. In Moseley v. Goodman, 195 S.W. 590 (Tenn. 1917), the testator left $20,000 to “Mrs. Moseley.” Mrs. Lenore Moseley, the wife of the owner of the cigar store where the testator traded, but whom the testator had never met, claimed the bequest. So did Mrs. Lillian Trimble, whom the testator called “Mrs. Moseley.: Trimble’s husband was a salesman in Moseley’s cigar store and was called “Moseley” by the testator. His wife managed the house where the testator lived and did kind things for him. The court ruled in favor of Mrs. Trimble.

Although there is a growing trend to allow extrinsic evidence in to correct ambiguities and mistakes in wills, this long line of cases show that mistakes will be made, and the best way to avoid costly will contests is to clearly state the intent of the testator, identify the relationship between the testator and the beneficiary. Finally, the final will document must be thoroughly reviewed for any possible mistakes, ideally by more than one attorney in the presence of the testator so as to hash out any potential ambiguities.

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*This post was originally published on April 28, 2015