The polestar of a will interpretation is the decedent’s intent, which is ascertained from the four corners of the document through consideration of all the provisions of the will taken together. See, Glenn v. Roberts, 95 So. 3d 271(Fla. 3rd DCA 2012) and §732.6005(1), F.S. It is the intention which the testator expresses in the will that governs, not that which he might have had in mind when it was executed. See, Adkins v. Woodfin, 525 So. 2d 447 (Fla. 4th DCA 1988). Language used in a will is to be construed according to its primary and ordinary meaning and technical or legal words employed in a will are presumed to have been used in their settled legal meaning. See, Rice v. Greenberg, 406 So. 2d 469 (Fla. 3rd DCA 1981).
When the terms of a will are clear and unambiguous, there is no reason to engage in construction. The determination as to whether a will is ambiguous is a question of law and extrinsic evidence should be considered only if the language in the will is ambiguous. See, Adkins v. Woodfin, supra and Miami Children’s Hospital Foundation, Inc. v. Estate of Hillman, 2012 Fla. App. LEXIS 17440 (Fla. 4th DCA 10/10/12). This same rule applies to trusts. For example, in Miami Children’s Hospital Foundation, Inc., the issue was whether Judge Speiser erred in concluding that there was ambiguity in a trust. The trust provision at issue provided that twenty five percent (25%) of the residuary trust assets were to go to “MIAMI CHILDREN’S HOSPITAL FOUNDATION, CRANIAL/FACIAL FOUNDATION, located at 3000 S.W. 62nd Avenue, Miami, FL 33155, ATT: Dr. Anthony Wolf [sic]”. The basis for the perceived ambiguity was the fact that the decedent wanted Dr. Anthony Wolf to have the ability to direct and control the assets of the trust and that the doctor was now the head of Miami Care. Based on this ambiguity, Judge Speiser concluded that Miami Care and not Miami Children’s Hospital Foundation, Inc. (“MCHF”) was the beneficiary of the trust. The appellate court found that this interpretation contradicted the plain language in the trust which unambiguously name MCHF as the beneficiary. In addition, Miami Care was not even in existence at the time the trust documents were executed.
Where there is either patent or latent ambiguity which obscures the intent of the decedent, construction of the will is necessary and parol evidence may be resorted to. In this respect, the court may hear evidence of the circumstances, situation, and surroundings of the decedent when the will was made. Compare, Dade County School Board v. Radio Station WQBA, 731 So. 2d 638 (Fla. 1999).
A patent ambiguity occurs when the provisions of the will itself are conflicting and unclear. In other words, it is an ambiguity that appears in the language of the will when that language is ambiguous on its face. For example, in First Union Nat’l Bank, N.A. v. Frumkin, 659 So. 2d 463 (Fla. 3rd DCA 1995), the court found the following provisions of the will to be patently ambiguous and allowed extrinsic evidence from various witnesses including the drafter of the will as to the decedent’s intent:
Under Article IV paragraph (B) of the will, the trustee is authorized to “. . . pay to Alfred Frumkin such sum of principal of the trust as trustee deems necessary or advisable from time to time for Alfred Frumkin’s health and medical needs. . .” and directs the trustee in determining the need for such distributions to consider Alfred Frumkin’s income and readily marketable assets. On the other hand, Article IV, paragraph D of the will directs the trustee not to “. . . sell or otherwise dispose of any such stock unless such action is required to provide funds to meet a medical emergency of Alfred Frumkin.” A “medical emergency” is specifically defined in the will as “. . . an incident of occasion requiring medical attention . . . that is life threatening.”
Additionally, in In re Estate of Walker, 609 So. 2d 623 (Fla. 4th DCA 1992), the court found that the phrase ”all my personal property which I may own at the time of my death” was ambiguous because the words “personal property” when used in a will have no fixed meaning and there is always a question of the intention of the testator so ascertained from the particular setting in which the phrase appears and the general tenor of the will.
In contrast, a latent ambiguity is one that arises when the application of the words of a will to the subject matter of a devise or to a devisee renders the will ambiguous. For example, in Scheurer v. Tomberlin, 240 So. 2d 172 (Fla. 1st DCA 1970), the decedent devised the residue of her estate to her daughter-in-law as trustee to pay the income to her grandchildren. Construction of the will was necessary because the decedent had no natural children and had not adopted any children, with the result that there were no known grandchildren. The absence of actual grandchildren in the face of a bequest for the benefit of presently living grandchildren pointed to the existence of a latent ambiguity in the will and under such circumstance evidence was admissible to show the persons to whom the decedent made reference.