Lexis Nexis - Case Brief

Not a Lexis Advance subscriber? Try it out for free.

Law School Case Brief

In re Estate of Cole - 621 N.W.2d 816 (Minn. Ct. App. 2001)


The surrounding circumstances should be examined first and direct evidence of the testator's intention should be considered only if the ambiguity or contradiction persists.


Ruth N. Cole executed a will on July 1, 1999, and died testate on July 8, 1999. Respondent personal representative petitioned the court for a construction of the will to find that appellant Veta Vining's bequest was for $ 25,000. After appellant contested the construction, the personal representative moved for summary judgment, basing the motion principally upon the affidavit and file notes of the scrivener, attorney Robert C. Black, III. Black's affidavit explains that he used his computer to "copy and paste" another paragraph of the will bequeathing "two hundred thousand dollars ($ 200,000.00)" to another individual and changed the name to Veta Vining. Black then changed the numerals to $ 25,000, the amount chosen by his client, but failed to change the words indicating the amount to "twenty-five thousand dollars." Appellant offered no evidence to contradict Black's affidavit or file notes and did not request the opportunity to cross-examine Mr. Black. The trial court classified the bequest as patently ambiguous because the inconsistency appears on the face of the instrument. Referring to historic precedents for admitting direct evidence of intention for latent but not patent ambiguities, the court concluded that the distinction serves no useful purpose. The court then undertook the task of assessing the credibility of the evidence and found that the scrivener's testimony was reliable, that no genuine issue of material fact remained for further litigation, and that the bequest to appellant Vining must be construed as "the sum of twenty-five thousand dollars ($ 25,000)".


Did the trial court properly consider direct evidence of a testator's intention in resolving contradictory provisions of a will?




The court held that the trial court properly determined what type of extrinsic evidence should be considered when construing the ambiguous and contradictory provision of decedent's will. The trial court first considered the surrounding circumstances before examining extrinsic evidence. The extrinsic evidence was used only to determine what the testator meant by the words used. Nothing in case law or statutes prohibited the trial court from considering such testimony. The trial court construed what the testator meant by the words she used, and the surrounding circumstances as posed by appellant permitted only speculation regarding the desires of the testator.

Access the full text case Not a Lexis Advance subscriber? Try it out for free.
Be Sure You're Prepared for Class