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Keywords

attorneyappealtrialtestimonyaffidavitwillpatentdirect evidence

trialtestimonywillpatentdirect evidenceappellant

Related Cases

In re Estate of Cole, 621 N.W.2d 816

Facts

Ruth N. Cole executed a will on July 1, 1999, and died testate on July 8, 1999. The will contained a bequest to her friend Veta J. Vining, stating 'the sum of two hundred thousand dollars ($25,000).' The personal representative petitioned the court to construe the will, arguing that the intended bequest was $25,000. The scrivener, attorney Robert C. Black, III, provided an affidavit explaining that he mistakenly copied and altered the bequest amount, leading to the contradictory language. Vining contested this construction but did not provide evidence to counter Black's affidavit.

The will of decedent Ruth N. Cole states a bequest to her friend, appellant Veta J. Vining, in 'the sum of two hundred thousand dollars ($25,000).' Appellant disputes the trial court's determination to consider testimony of the will's scrivener that explains the contradictory language of the will.

Issue

Did the trial court properly consider direct evidence of a testator's intention in resolving contradictory provisions of a will?

Rule

Direct evidence of a testator's intention may be considered by courts construing contradictory provisions of a will.

Analysis

The court determined that the trial court correctly admitted the scrivener's testimony to clarify the ambiguous language in the will. It noted that the distinction between patent and latent ambiguities was outdated and that considering extrinsic evidence was necessary to ascertain the testator's true intent. The court found that the scrivener's affidavit was credible and that no genuine issues of material fact existed, allowing the court to conclude that the bequest was for $25,000.

The trial court correctly denigrated the usefulness of a distinction between patent and latent ambiguities for determining what type of extrinsic evidence should be considered when construing ambiguous or contradictory provisions.

Conclusion

The Court of Appeals affirmed the trial court's decision, concluding that the bequest to Veta J. Vining must be construed as 'the sum of twenty-five thousand dollars ($25,000).'

Affirmed.

Who won?

The personal representative prevailed in the case because the court found the evidence of the testator's intention credible and determined that the bequest was for $25,000.

The trial court properly considered direct evidence of the testator's intention.

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