What happens when a Will appears to have inconsistent provisions?
Full Question:
I AM AN EXECUTOR AND BENFICIARY OF PART OF AN ESTATE AND THE FOLLOWING CLAUSE IS INDEED IN IT BEQUEETHING BTO SOMEONE ELSES NAME, "I will, devise, bequeath and give all the rest and remainder of my property and estate of every kind and character, including, but not limited to, real and personal property in which I may have an interest at the date of my death and which is not otherwise effectively disposed of, to ..." (SAID beneficiary) AND THEN LATER ON IT STATES THAT SAID TESTATOR "HEREBY SPECIFICALLY DEVISES: AND IT STATES A SPECIFIC PIECE OF THE ESTATE. THEN SOON AFTER IT STATES ""HEREBY SPECIFICALLY DEVISES: AND BEQUEATH ALL THE REMAINDER RESIDUARY ESTATE TO 50% (BENEFICIARY AND 50 % (BENEFICIARY" AS PER STIRPES. I'M NOT TOTALLY SURE FULLY IN THE STATE OF DELAWARE WHAT EXTENT THIS GOES AND WHAT IS WHOS.
03/08/2017 |
Category: Wills and Es... ยป Will Forms |
State: Delaware |
#33622
Answer:
Specific bequeaths or devises have preference over general ones. This means a provision that says a person gets x takes precedence over a provision that states "all the rest and remainder of my property". Also the order of the provisions would more than likely not be an issue. Specific still controls over general.
The bigger problem appears to be with the provisions that leave all remainder to x and then all remainder to y and z 50% each. If the beneficiaries are not the same in each of these provisions there would be a problem. If they are the same then hopefully you don't have a problem.
You can take several steps.
- You could get the heirs to agree how this should be handled. If so, you can request that the Court approve their agreement of how to resolve the conflicting language.
- You could file a Motion for the Court to construe and interpret the Will to determine the intent of the Testator and have a hearing at which all interested parties would be entitled to be heard.
- You could have the heirs who do not agree file a Motion to construe and interpret the Will.
