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Court Of Appeals Of Tennessee Upholds Ambiguous Codicil To Will

Rather than executing an entirely new will to change a provision in a will or, in order to make a specific bequest of property, sometimes a person will execute a codicil to an existing will, which, in effect, changes the will. Generally, codicils to wills are enforceable in Tennessee to the same extent as are wills.

In a recent Tennessee case, the testator (the person who made the will) signed a codicil (“Codicil”) to his will (“Will”) about thirty six hours before he died and years after he made the Will. That Codicil became the subject of a dispute between a beneficiary of the Will and the beneficiary named in the Codicil. In the Will, the 100 acre farm owned by the testator was bequeathed entirely to his daughter (“Daughter”). In the Codicil, the testator bequeathed part of his farm to a Mr. Powell, a close friend.

The wording of the Codicil is important to an understanding of the case. In it, the testator bequeathed to Powell a part of his farm of “approximately 35 acres” and described, very generally, the location of that acreage. In the Codicil, the testator also bequeathed to Powell another part of his farm of “approximately 20 acres” and, again, described its location in very general terms. At the very end of the Codicil, the testator stated that approximately 45 acres of his 100 acre farm, which remained after the bequests to Powell, were to be distributed to Daughter.

The Codicil was prepared at the hospital, and apparently, at a time when the testator knew his death was impending. The testator and his lawyer, who helped him prepare the Codicil at the hospital, did not have time to give metes and bounds descriptions of the parcels bequeathed to Powell, or, to give any more specific descriptions of that property than were contained in the Codicil.

After the testator passed away, a survey revealed that the description of the land in the Codicil which was left to Powell contained 80 acres, as opposed to 55 acres, which was the amount of acreage which was intended for Powell. The Will and Codicil were filed with the probate court for Loudon County, Tennessee. The probate court judge ruled that the Codicil was void as it was ambiguous and because “extensive governance would be required to validate it.”

The Court of Appeals of Tennessee reversed the probate court’s holding that the Codicil should be voided. It agreed that the Codicil was ambiguous. Nevertheless, it held that the intent of the testator was that both Powell and Daughter receive his land, and that the testator’s intent should be enforced. In Tennessee, the “cardinal rule” of will interpretation is that the intent of the testator should be given effect unless it contravenes some law or public policy.

So, how did the Court of Appeals resolve the conflict between the property descriptions in the Codicil and the results of the survey? (Powell argued that the language of the Codicil should be strictly enforced, and that he should receive the 80 acres established by survey). In a “Solomonesque” ruling, the Court of Appeals ordered that the probate court should require that the land be surveyed to establish boundaries whereby (1) Powell would receive tracts of land in the areas described in the Codicil of 55 total acres; and (2) Daughter would receive a tract of land of 45 acres.

A couple of lessons flow from this decision. First, where a testator’s intention is clear, a Tennessee court might well see that it is carried out even if doing so requires court intervention to resolve a substantial ambiguity. Second, the right of every civil litigant in a Tennessee court to an appeal is valuable.