Link to video here:
WSET.com – ABC13
Will and trust litigation case leads to TV interview.
WSET interviewed me this week with regard to a will and trust litigation case that has captured reporters’ interests.
To begin with, I was honored to be contacted by WSET to provide comments on a current will and trust litigation case that is making headlines. If you watch the video and don’t blink you will see me comment on evidence that is likely to play a role in the litigation. I was really hoping they would devote a whole hour to our interview on air…right. Charlie Rose should be calling any minute. LOL.
More about the case:
It is an interesting case. Resolution will come down to who can best persuade the court with a limited set of facts. In my opinion, the approach to the issues is governed by the Virginia Supreme Court decision in Westmoreland County Volunteer Rescue Squad v. Melnick, 414 S.E.2d 817, 243 Va. 222 (Va., 1992). The facts in that case were quite analogous to the facts in this one. What the Supreme Court had to say about resolving ambiguity set forth the standard for this type of wills and trusts litigation.
In general, the testator’s intent controls whenever a court is asked to construe a will. When that intent is ambiguous then the court may consider evidence outside the language set forth in the will. Such evidence is referred to as “extrinsic evidence”.
There are basically two kinds of extrinsic evidence that a court needs to consider in a case where the ambiguity involves the identity of a beneficiary. First, “facts and circumstances” evidence about the testator, the testator’s family, relationships, values, habits of thought and language etc. Second, “declarations of intention” evidence such as statement he or she made about his or her testamentary intentions.
In the case I was asked to comment on, some of the most valuable evidence that could be obtained would include proof of gifts the testatrix may have made to a particular organization during her lifetime or evidence that she volunteered for, worked for, or adopted an animal from one of the organizations lining up for her testamentary gift. Of course, the difficulty is that the testatrix passed away over 40 years ago so much of the evidence may be lost to time. What this means is that the court may have to weigh other evidence such as the proximity of those organizations to the testatrix’s home or other places she may have lived during her life if it can be successfully argued that the closer organization were more likely to be the objects of her bounty. In the digital age it is hard to imagine how distance would matter. The testatrix lived in a different age. An age when the world was a lot smaller than it is now.
It will be interesting to watch this contested will case move forward.
If you have any questions about wills, trusts, or estate planning, please feel free to contact me.