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  • jason jones

"All My Personal Property" - Patently Ambiguous?

Updated: Oct 17, 2021

Is a devise of “all my personal property” patently ambiguous? The NC Court of Appeals reminds us in Treadway v. Payne (October 5, 2021) that if any phrase is used in “several inconsistent passages that are mutually exclusive” the answer is: Yes.

Testator died in 2018. His Will appointed his domestic partner as his Executor (“PR”) but made a series of devises later taken to be inconsistent. A review of the record on appeal indicates that despite the approximate $2.8 million dollar estate value (if you include Part II real estate), the PR attempted a pro se administration (handwritten application, inventory, and annual accounting). One wonders if counsel for the PR early on could have avoided some of these troubles, as the match to the powder keg was when the PR unilaterally (without court approval) transferred over $1 million in assets to his personal accounts, based on his good faith understanding of the Will and his authority as PR. As I have mentioned in other case notes: it is not always the blackletter law that turns a matter into a lawsuit, but how fiduciaries and beneficiaries take certain actions (or how they are perceived). Nonetheless, while the trial court did not find this amounted to a breach of fiduciary duty, it did slap the PR with a judgment based on actionable conversion.

At trial and on appeal what was undisputed was that the PR was the devisee of the proceeds of the sale of real property valued just shy of $700,000 after payment of demonstrative devises (devises of specific amounts payable from a designated source) to other devisees totaling under $100,000.

What was in dispute was how to reconcile other language in the Will which gave rise to disparate views regarding Testator’s disposition of his personal property. For instance, a clearly self-titled residuary clause (oddly not listed last in the sequence of devises) leaves the residue to family other than the PR. However, a preceding devise already left “all my personal property” to the PR. Additionally, other devises call into question whether there was clear testamentary intent for the PR to actually get “all” the personalty, such as a direction for the “remaining personal possessions” (emphasis added) of the house to be sold and contributed towards fulfillment of the demonstrative house proceeds devises. Lastly, certain demonstrative devises of a charitable nature specifically called for their source of funding to be things such as “automobiles.”

Issue: if the PR got “all” the personal property, then how would any other personalty remain for these competing devises? According to the trial court (affirmed on appeal) therein was the patent ambiguity, i.e., the inconsistent devises.

When a patent ambiguity exists within the 4-corners of the Will, evidence of attendant circumstances may be introduced to guide the court to the “polar star” of testamentary intent. In Treadway, such evidence tended to show that the PR, while undoubtedly important to Testator, was not Testator’s spouse. Indeed, the opinion details that their romantic relationship had a fourteen (14) year hiatus, striking back up again only from 2015 to his death in 2018. The Plaintiff/Appellee brief notes that a twenty-one (21) year age difference existed, with the PR being the younger; that the family (residuary devisees: nieces and nephews) had never met the PR until Testator’s final illness; and that in addition to maintaining separate finances the PR was not even Testator’s POA.

Cases like this and others (In re Will of Allen in 2018 at the NC Supreme Court comes to mind) show North Carolina appellate courts trending towards a more forgiving (read: litigation-inviting) approach to Will interpretation.

Takeaways for Planners & Probate Counsel:

  • Context Matters: Be precise in drafting with devises that overlap common categorical property references.

  • Role Play: Proofread your documents pretending you’re a litigator! It doesn’t matter if you understand what the Testator wants: will someone adversely affected have wiggle room to argue ambiguity exists looking at the naked Will?

  • Help the Pro Se: Why did the PR not hire probate counsel on such a large estate? Was it a fear of fees (the most common reason)? The Will went out of its way to try and achieve a sale of the house without a realtor, if possible. Are your fees such that your services are accessible? Is this our (attorneys’) problem, or not?

  • Would This Case Have Been WORSE With a Trust? Some aspects of this bring to mind whether alternate asset-specific planning could have been done (marriage and/or pre-marital agreement, life estate, trust, etc.). In considering whether a trust specifically may have had a role to play, I always explain to clients that the “confidentiality” provided by trusts cuts both ways: meaning, in this case if it weren’t for court accountings in probate would Plaintiffs have even known of the conversion? While they could have inquired and been entitled to “reasonably complete and accurate information” from a trustee under NCGS 36C-8-813, that is (intended to be, and is) an additional, deterring degree of separation many beneficiaries do not tackle.

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