Understanding the Doctrine of Probable Intent When a Last Will is Unclear in its Language

HNWEstate Administration and Probate, Will Contest and Probate Litigation

  • N.Last WillJ.S.A. 3B:3-33.1 delineates the doctrine of probable intent.
  • The statutory focus is to implement “[t]he intention of a testator . . . .”
  • The doctrine of probable intent offers the court “a ‘broader and more liberal approach to the interpretation of a Last Will with unclear or vague language.
  • A court closely looks at the words and phrases used by the creator to determine what he/she intended when he/she signed the document.

Understanding What the Doctrine of Probable Intent Means

The doctrine of probable intent is not applicable where a document is clear on its face regarding a decedent’s bequest or a term or provision of a Last Will and/or trust.  “Probable intent” is applied sparingly and only where necessary to give the effect to the intent of the will or trust without altering the terms of the document(s).

In instances where the intent of the will or trust is unclear, “[t]he doctrine permits the reformation of a will in light of a testator’s probable intent by ‘searching out the probable meaning intended by the words and phrases in the will.”  “Moreover, extrinsic evidence (meaning evidence taken from other than the document itself) may be offered not only to show an ambiguity in a will but also, if an ambiguity exists, ‘to shed light on the testator’s actual intent.'”

Interpretation of a term within a Last Will or trust is confined to “the four corners of the document and the language therein . . . .”  “To that end, in interpreting a will, courts in this state endeavor to ‘ascertain the intent of the testator.”  The court subsequently “consider[s] the circumstances surrounding its execution and other extrinsic evidence of intention.”  Furthermore,

[t]he trial court is not “limited simply to searching out the probable meaning intended by the words and phrases in the will.”  Extrinsic evidence may “furnish[] information regarding the circumstances surrounding the testator [and] should be admitted to aid in ascertaining [the testator’s] probable intent under the will.”  To be sure, the testator’s own expressions of his or her intent are highly relevant.  Once the evidence establishes the probable intent of the testator, “the court may not refuse to effectuate that intent by indulging in a merely literal reading of the instrument.”

The trial judge reviews the documents and other documentary evidence in detail, in addition to the court’s reliance on the testimony of those witnesses the judge finds credible.

If you are looking for additional details on this topic or if you require advice about your situation, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com.  Please ask us about our video conferencing or telephone consultations if you are unable to come to our office.

By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold Township, Monmouth County, NJ Estate and Probate Litigation Attorney

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