Say What You Mean and Mean What You Say | Estate Planning Newsletter

In the case of Estate of Jerry A. Dunn, the Court of Appeals construed certain provisions in the Decedent’s Will which read as follows:

I give, devise, and bequeath solely to my wife, Beverly Ann Dunn, my farm located on Deadfield Road, Arlington, Tennessee for her to dispose of as she deems proper and distribute some of the proceeds to my children and stepchildren.

The widow asked for a construction of the Will finding that she inherited fee simple title to the “farm.” The children contested that position and argued that the Will should be construed as placing the farm in a trust, and that the Will appointed the widow as Trustee responsible for selling the farm and making distribution to the children. Both the Trial Court and Court of Appeals ruled in favor of the widow. The Court of Appeals pointed out that the use of the words “give, devise, and bequeath” and “solely” demonstrated an intent to devise the farm to the widow in fee simple absolute.

The Court rejected the children’s argument that use of the words “dispose of” to strictly mean disposition by sale. Instead, the Court determined the language for her to dispose of as she deems appropriate implied unencumbered ownership.

The Court acknowledged that the language in the Will concerning “proceeds” created a certain level of ambiguity. However, the Court nonetheless observed a clear testamentary intent to devise the farm to the widow in fee simple absolute.

My Recommendation: Wording in a Will is very important. In ambiguous situations, courts are left to determine what was the intent of the testator. As the title to the letter indicates, “say what you mean and mean what you say.”

As a footnote, the Court’s opinion did not indicate whether the Will was written by a lawyer or a lay person.

Yours very truly,

RAINEY, KIZER, REVIERE & BELL, P.L.C.

William C. Bell, Jr., Attorney at Law

This newsletter is intended to provide you with ideas for consideration in commercial transactions.  It is not intended to give a general solution applicable to all apparently similar individual problems, since slight changes in facts may require variance in legal advice.  Please contact legal counsel with specific questions.