Law of Wills, 2016A

3. Patent vs. latent ambiguity: According to the Russell court, it would admit extrinsic evidence to
clear up a patent, but not a latent ambiguity. However, the court appeared to violate that rule. On
the face of the will, the testator left her estate to Quin and Roxy. There was no confusion about her
intent. The uncertainty arose when the niece was allowed to introduce evidence that Roxy was a dog.
The court seemed to take a two-step approach. First, the court let the niece bring in outside
information to show that Roxy was a dog. Then, the court permitted her to submit evidence to clear
up the latent ambiguity caused by the introduction of evidence that Roxy was a dog. Consider the
following examples. T executes a will stating, “I leave my estate to the president.” There is only one
president of the United States; however, the T did not specify to which president she was referring.
She could have meant the president of her bank etc. In that case, the court would admit outside
evidence to prove T’s intent with regards to this patent ambiguity. T executes a will stating, “I leave
my estate to President Bush.” This is not a patent ambiguity because it is clear that the testator
wanted to leave her property to President Bush. The uncertainty occurs when the court lets
someone introduce evidence showing that there have been two presidents with the last name Bush.
In order to clear up that latent ambiguity, the court will allow the introduction of outside evidence to
show which President Bush the testator wanted to inherit her property.
4. Problems-In which of the following cases would the court allow extrinsic evidence to show the
testator’s intent? Why? Why not? Identify the ambiguity as latent or patent.
(a) Cindy left a will stating, “I leave my entire estate to my best friend.”
(b) Meredith left a will stating, “I leave all of my property to the queen.”
(c) Roger left a will stating, “I leave my estate to my church.”
(d) Darwin left a will stating, “I leave all of my property to my neighbor.”
(e) Steven left a will stating, “I leave my estate to Betty White.”
14.3 Antilapse Statutes
The lapse rules some time requires courts to distribute a testator’s property in a way that
goes against his or her expressed preferences. For example, a disinherited child may be able to
inherit if a portion of the testator’s residuary estate lapses. Antilapse statutes were enacted to
alleviate this problem. Antilapse statutes do not prevent lapses. Those statutes redirect a lapsed gift
to the descendants of the predeceasing beneficiary. One purpose of antilapse statutes is to carry out
the testator’s presumed intent. The idea is that, for certain devisees, the testator would probably
have preferred the devisee’s descendants to take the gift to prevent it from lapsing. Another goal of
antilapse statutes is to prevent the application of the intestacy system. If a person makes the effort to
execute a will, the law presumes that he or she did not want to die intestate. An antilapse statute
applies to a lapsed devised only if the devisee bears the particular relationship to the testator
specified in the statute. Consider the following antilapse statute.
641