A "Will Construction Action" is very different from a "Will Contest". In the former, the Last Will is accepted as valid; in the later, the validity of the Last Will is being challenged.
There are many different reasons for filing a Will Construction case; however, typically I usually see situations where there is some "inconsistency" within the terms of the Last Will, or a situation where the language used in the Will is confusing or incomplete. In these situations, the Probate Court has to determine what is meant by the language in the Will.
I have handled several Will Construction cases in my office and I am experienced in gathering and presenting the evidence necessary to prove your case.
There are many different reasons for filing a Will Construction case; however, typically I usually see situations where there is some "inconsistency" within the terms of the Last Will, or a situation where the language used in the Will is confusing or incomplete. In these situations, the Probate Court has to determine what is meant by the language in the Will.
I have handled several Will Construction cases in my office and I am experienced in gathering and presenting the evidence necessary to prove your case.
The Zigray Law Office, LLC is located in Maumee, Ohio (a suburb of Toledo); However, I handle probate litigation matters throughout the State of Ohio. I offer free consultations and in most cases, I am available to talk to you about your case in your home. I handle most of my cases on a "contingency fee" basis, which means I only get paid for my services if I obtain a recovery for you.
You can contact me through my email address at dan@zigraylaw.com or though our website http://www.zigraylaw.com/.
The following case is a recent illustration of a Will Construction case from Clark County, Ohio:
Montford Will v. Rokus, 2009 Ohio App. LEXIS 3368 (2nd Dist. Ct. App., Clark Co. 8/7/2009).
Mary Petticrew died in 2008 with a will that contained 23 specific bequests and a residual clause that left the remaining estate assets to the “STANLEY AND MARY PETTICREW FOUNDATION”, which was to have been created in a separate document. Stan predeceased Mary and neither Stan nor Mary had created the Foundation. The question was where should the residuary estate go? If it was found that the bequest to the Foundation lapsed, it would all go to Mary’s son under Descent and Distribution. The executor asked the court to determine (1) whether the residuary would pass to Mary’s son or (2) if the court can imply/create an entity to carry out the unstated charitable purpose. Because the issue involved a charity, the Ohio Attorney General was made a party to the case. After Motions for Summary Judgment were filed, the trial court found that the residuary clause created a “charitable trust” and Mary’s son appealed.
The sole function in a will construction action is to ascertain the intent of the testator. ORC 5804.05(B) states: “If the terms of a charitable trust do not indicate a particular charitable purpose or beneficiary, the court may select one or more charitable purposes or beneficiaries. The selection must be consistent with the settlor’s intention to the extent it can be ascertained.” The issue became whether Mary indicated a charitable intention in the will’s language even though she did not execute a separate document.
The Court of Appeals found that the intention to create a trust under 5804.02(A) requires the settlor’s present intention to do so. The specification in Mary’s will that the Foundation would be created by an instrument separate from the will operates as a condition precedent to the creation of the trust. Because Mary never executed that instrument, the residuary clause is insufficient to indicate the intention to create that charitable trust.
The Court of Appeals further stated that since Mary’s will said that the separate instrument would identify the charitable uses and purposes of the trust, they were not authorized to select a charitable purpose because Mary failed to state any ascertainable charitable intention (5804.05(B)) The Court of Appeals reversed and remanded.
The following case is a recent illustration of a Will Construction case from Clark County, Ohio:
Montford Will v. Rokus, 2009 Ohio App. LEXIS 3368 (2nd Dist. Ct. App., Clark Co. 8/7/2009).
Mary Petticrew died in 2008 with a will that contained 23 specific bequests and a residual clause that left the remaining estate assets to the “STANLEY AND MARY PETTICREW FOUNDATION”, which was to have been created in a separate document. Stan predeceased Mary and neither Stan nor Mary had created the Foundation. The question was where should the residuary estate go? If it was found that the bequest to the Foundation lapsed, it would all go to Mary’s son under Descent and Distribution. The executor asked the court to determine (1) whether the residuary would pass to Mary’s son or (2) if the court can imply/create an entity to carry out the unstated charitable purpose. Because the issue involved a charity, the Ohio Attorney General was made a party to the case. After Motions for Summary Judgment were filed, the trial court found that the residuary clause created a “charitable trust” and Mary’s son appealed.
The sole function in a will construction action is to ascertain the intent of the testator. ORC 5804.05(B) states: “If the terms of a charitable trust do not indicate a particular charitable purpose or beneficiary, the court may select one or more charitable purposes or beneficiaries. The selection must be consistent with the settlor’s intention to the extent it can be ascertained.” The issue became whether Mary indicated a charitable intention in the will’s language even though she did not execute a separate document.
The Court of Appeals found that the intention to create a trust under 5804.02(A) requires the settlor’s present intention to do so. The specification in Mary’s will that the Foundation would be created by an instrument separate from the will operates as a condition precedent to the creation of the trust. Because Mary never executed that instrument, the residuary clause is insufficient to indicate the intention to create that charitable trust.
The Court of Appeals further stated that since Mary’s will said that the separate instrument would identify the charitable uses and purposes of the trust, they were not authorized to select a charitable purpose because Mary failed to state any ascertainable charitable intention (5804.05(B)) The Court of Appeals reversed and remanded.
The Zigray Law Office, LLC
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Email: dan@zigraylaw.com
Website: www.zigraylaw.com
