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Courts Review Abiguity in Will Clause


A New York Probate Lawyer said that according to sources, this will contest action, involving the construction of a latent ambiguity in a will clause, foregrounds the difficulty of determining close cases in the absence of a clearly enunciated burden of proof. An earlier decision denied summary judgment on an objection in this estate accounting challenging “the Executor’s claim that a rare book collection worth more than $5 million at the time of decedent’s death was included in the specific bequest of tangibles,” finding a latent ambiguity requiring consideration of extrinsic evidence and directing a hearing on the issue. Familiarity with the facts set forth in that opinion is assumed, but a few need be repeated in order to place the resulting hearing, and testimony adduced there, in context.

The decedent, died leaving an estate of approximately $17 million. His two-page will, admitted to probate on September 5, 2007, named his wife as his executor. In Article SECOND, it made a specific bequest of tangibles to his wife, and in Article THIRD, it bequeathed the residuary, two-thirds to his wife and one-third to his son. In her capacity as executor, the wife signed and filed an estate tax return that specifically designated a “rare book collection” valued at $5.2 million, which she has deemed included in the specific bequest to her. Whether the Collection was or was not included in the specific bequest is the issue raised by the son, as objectant to the wife’s intermediate accounting.

A New York Estate Lawyer said that witnesses testified at the hearing. The Decedent was a passionate collector of pre–1800 materials relating to festivals, or “fêtes,” and had been engaged in assembling the Collection for many years, beginning before his marriage. The Collection consisted of books; prints, manuscripts, pamphlets, scrolls and broadsides. Most of the Collection was maintained in decedent’s apartment, the books in a glass-fronted bookcase prominently featured in the living room, with other items in storage boxes specially constructed to avoid damage from light and dust. Some twenty-one larger items were kept in a safe deposit box at a nearby bank. The wife, a collector in her own right, assisted him in assembling the Collection, and whenever pieces from the Collection were lent to museums, their provenance was described as that of “Mr. and Mrs.”

In the witnesses testimony, both put to rest any notion that decedent was “collecting for investment purposes.” However, shortly after decedent’s death, the wife began the process of monetizing the Collection, first bringing the items in the safe deposit box to the apartment, and then engaging to auction off the vast majority of the pieces contained in it. Perhaps the most significant testimony was that explaining the nature of “collections” and “collecting.” He explained, for example, that the Club is “not a book club in the sense that people get together and discuss current novels or nonfiction books and discuss them back and forth. The Club is made up of people who are, certainly, concerned with books as information, as texts, but also as historical artifacts, as objects of art, and as the focus of collecting.”

Westchester County Probate Lawyers said that collectors, like decedent, are, he explained, interested in the “historical value, the state of bibliography or scholarship” of objects “worthy of being collected together.” He elucidated this latter phrase and the term “collection” in general, by describing a “collector” as “somebody collecting in an area that hasn’t been collected very heavily before or that a collector is taking a new approach to putting together a collection of books” and further explained, “the goal being to discover something about these books that wasn’t known before or that allows scholars and collectors to look at these books in a new way.”

Suffolk County Probate Lawyers said that where a will contains an ambiguity, the court’s primary, overriding task is to determine the decedent’s intent. Various canons and rules of grammatical construction may be utilized in aid of this endeavor, but are not, in themselves, dispositive and, indeed, when literally applied, often lead to opposite results. Here, for example, the parties argue about the placement of commas in the phrase “household furniture or furnishings, books, pictures, jewelry and other articles of personal or household use” and whether the phrase “of personal or household use” modifies all that comes before, or only “other articles.” Engaging in mechanical reading of the text could result in several different but plausible constructions: that all “books” and “pictures” (but not manuscripts, broadsides, pamphlets, etc.) are included in Article SECOND; that all items displayed (and thus “used”) are included, but those stored in boxes, wherever located, are not; that all items located in the apartment are included, but those stored at the bank are not; that “books” has its usual meaning such that the hardback novels and nonfiction books that decedent read, enjoyed, and retained are the objects referred to in Article SECOND, but the “books” and other protected items in the Collection are not; etc.

The task of construction is made more difficult by the absence of a clear burden of proof. The parties were repeatedly asked which bore the burden of proof, and what the burden is (i.e. preponderance, or clear and convincing) but neither provided any compelling authority, nor was the court successful in locating any helpful New York precedent. Instead, appellate cases make pronouncements like “[w]here language of a will does not affirmatively show the claimed intention, the burden of establishing such intention is on the party seeking to effectuate it”, which would appear to place equal burdens on both parties. The Restatement also fails to provide assistance to the trier of fact in a close case, such as this, stating: In resolving an ambiguity in a donative document, the construction placed on the document by a fiduciary (or other payor) is not entitled to a presumption of correctness in litigation. The court resolves the matter de novo”.Although the absence of burden allocation is understandable, it makes the task of a trier of fact significantly more difficult in cases which, by their very nature, involve ambiguity or lack of clarity.

There are at least two possibilities for allocation of the burden, which would serve, at least in some cases, conflicting policies. There could be a presumption that the construction of the will proposed by the executor is correct, placing the burden on objectant. This allocation would, arguably, further the decedent’s general intent as demonstrated by her choice of a particular person as her fiduciary. On the other hand, where the executor herself is a beneficiary who would benefit from a particular construction, the burden might be placed on her. This would further the general principle that a fiduciary owes loyalty to all beneficiaries and may not engage in self-dealing. Or, these allocations could be adopted together (i.e., burden on objectant unless fiduciary is a beneficiary under the ambiguous language; then burden shifts), thus providing greater certainty and decreasing the litigation burden on the courts.

In the absence of appellate guidance, however, the court is left in a situation similar to another other issue in which no burden of proof has been imposed, determining the “best interests of the child” in initial custody and visitation proceedings between parents, which has been heavily criticized.What follows, therefore, is the court’s best evaluation, based on the evidence adduced at the hearing, of what decedent meant in executing the ambiguous will at issue here.

The single most important “fact” emerging from the hearing relates to the meaning of “collection” as it, in turn, relates to the items in controversy, however denominated. That is, rather than a number of independent objects – books, prints, etc. – the “Collection” was, itself, the entity: an amalgamation, carefully assembled, that, in and of itself, constituted an object of research, study and contemplation. Whether described in exhibition catalogues, articles in art publications, conversations between decedent and curators, or in the Form 706 Estate Tax Return signed by the wife, there were not simply, or primarily, x number of individual books, y number of prints, z number of manuscripts, etc., but rather a single whole, greater than the sum of its parts, understood and valued as such. Decedent spent much of his life, often with his wife’s loving assistance, creating the Collection, that is, literally, continuously making something, of continuing growth, that was of scholarly, historical, bibliographical and aesthetic value considered as a whole.

As such, it is difficult to believe that decedent intended to include this, his life’s avocation, in the pedestrian phrases “books, pictures and other items of personal or household use.” Instead, it seems more likely that the absence of any mention of the Collection, a major asset, like the absence of mention or description of decedent’s stock portfolio, was intentional, and reflected an intention, on the one hand, to leave his widow a home filled with that which she herself used, but to divide his major assets (apart from the specifically noted cooperative apartment) between her and his son by consigning them to his residuary estate.

Another piece of evidence, adduced at the hearing, strongly supports this conclusion. This is a letter, written by decedent on the same date that he executed his will, to his stepdaughter. The letter clearly states decedent’s intention, if he predeceased his wife, to leave two-thirds of his estate to her and one-third to his son, the objectant.

Understandably separating out the home which they had shared, decedent left his financial and monetizable assets, a considerable stock portfolio, and the valuable Collection to his wife and son in a two-thirds/one-third split. If the Collection were to be included in Article SECOND, his son would receive only about one-sixth of his estate, an amount entirely inconsistent with the intent expressed by decedent in his contemporaneous letter to his stepdaughter. For these reasons, in the absence of a strong burden on objectant, the court finds from all the evidence that decedent intended the Collection to pass in his residuary estate. Accordingly, the objection is sustained, and the Collection passes via Article THIRD, the residuary clause of decedent’s will. This constitutes the decision and order of the court.

Stephen Bilkis & Associates, with offices located throughout New York, renders legal assistance especially in cases involving estate litigation, will contest, estate administration or any matters involving the estate such as those relating to construction or interpretation of the provisions of the decedent’s will as shown in the instant case, or collection of a sum of money against the estate of the testator, or those affecting the rights of the heirs or other beneficiaries. Through its well trained Kings County Estate Lawyers or its knowledgeable New York Probate Attorneys, a legal team who is not only skilled but willing to assist and aid you the proper remedy, you can be assured of a competent representation before the courts.

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