Will Intepretation


Many estate disputes involve a claim that a will or trust is ambiguous with respect to who is entitled to an asset. Maybe the document was not drafted clearly or perhaps circumstances have changed such that the proper recipient is no longer clear.

Disputes over the interpretation of a will or trust are common, because the meaning of a few words can alter the disposition of millions in assets. In particular, disputes often arise regarding the division of oil and gas mineral interests.

The construction of a will is typically a question of law for a court. There are certain rules of construction that Texas courts apply to wills and trusts. The primary focus is on the testator's intent. But intent must be drawn from the words used in the will, not the will from the intent. other words, the testator's intent must be garnered from the actual language within the four corners of the document. But if those words are open to more than one reasonable construction, evidence of the testator's situation, the circumstances surrounding or influencing the will's execution, and like indicia which enable the court to place itself in his shoes at the time the document was executed may be admissible. This is so because they may facilitate the determination of intent at that time. But, again, this exception applies only when words are susceptible to more than one construction. If they are not, then the court can look to nothing other than the face of the instrument. This requires a careful examination of the words used, and if the they are unambiguous, a court should not go beyond the specific terms in search of the testator's intent.

It is important to focus on what the testator actually said and not by what the testator could or should have said. In construing the language used in a will, words of common use are given their plain and ordinary meaning unless, from the context in which they are used, it appears that a different meaning was intended. Courts may not redraft wills to vary or add provisions to reflect a presumed intention of the testator. If possible, the court is to construe the instrument to give effect to all provisions so that no provision is rendered meaningless.

In Texas, where a person makes a will, the presumption prevails that the testator intends to dispose of all of his property and not die intestate as to any part thereof. Where there is no language in a will which indicates that the testator intended to die intestate as to any part of his property, the presumption against partial intestacy must prevail. A court should not arrive, if possible, at a construction of a will that results in partial intestacy, for such an outcome is disfavored. Where the will contains a residuary clause, the presumption against intestacy is especially strong. It is well settled that lapsed bequests pass into the residuary absent a contrary intent expressed clearly in the will. It is only in exceptional cases, i. e., when the testator's intent that the subject property not pass under the residuary clause appears in the provisions of the will, that courts have upheld a partial intestacy. The presumption against intestacy does not arise when a testator fails, through design or otherwise, to make complete disposition of his or her property.

Texas law also favors the vesting of estates at the earliest possible period, and courts will not construe a remainder as contingent when it can reasonably be taken as vested. When a will provides that upon a certain contingency the estate given shall pass to another, the law favors the first taker and will construe the words of the will to grant to the first taker the greatest estate which they, by a fair construction in harmony with the will as a whole, are capable of passing.

Unless the language contravenes, a will should be so construed as to render the instrument and all of its provisions consistent and harmonious. A later clause in a will must be deemed to affirm an earlier clause, if this construction can fairly be given. But if there is an irreconcilable conflict, the earlier clause must give way to the later, which prevails as the latest expression of the testator’s intent on the particular subject.

When a will has been drafted by a layperson who is not shown to be familiar with the technical meanings of certain words, courts do not place too great emphasis on the precise meaning of the language used where the will is the product of one not familiar with legal terms, or not trained in their use; instead in arriving at the meaning intended by the layman-testator, courts refer to the popular meaning of the words the testator chose to use.

Also, if a beneficiary under a will predeceases the testator, the gift fails (i.e. lapses), unless the will contains an alternative disposition. This rule may produces an unpalatable result, especially in cases where the surviving relatives are denied an inheritance. In order to avoid this result, the anti-lapse statutes provide for substitute recipients. This statute prevents the lapse of a gift made to a descendant of the testator or to a descendant of the testator's parents when the beneficiary predeceases, or is deemed to have predeceased, the testator. In that circumstance the descendants of such a devisee, who in turn have survived the testator, receive the property.

The Texas anti-lapse statute generally provides:

(a) Except as provided by Sections 255.153 and 255.154, if a devise, other than a residuary devise, fails for any reason, the devise becomes a part of the residuary estate.

(b) Except as provided by Sections 255.153 and 255.154, if the residuary estate is devised to two or more persons and the share of one of the residuary devisees fails for any reason, that residuary devisee's share passes to the other residuary devisees, in proportion to the residuary devisee's interest in the residuary estate.

(c) Except as provided by Sections 255.153 and 255.154, the residuary estate passes as if the testator had died intestate if all residuary devisees:

(1) are deceased at the time the testator's will is executed;

(2) fail to survive the testator; or

(3) are treated as if the residuary devisees predeceased the testator.

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