Will and Trust Construction  describes the process by which a Court action is required to determine the legal meaning of a term used in a document. Sometimes the need for judicial construction is clear; other times one side to a dispute seeks to have the document administered differently than how the document is written.

Determining Whether a Document is Ambiguous: The general rule is the Courts are not empowered to change the terms of a Will or Trust document, rather the person who created the document is entitled to leave property however he or she wishes. Sometimes, however, the document as written leaves room for doubt as to who should inherit, or what should be inherited. These issues can result from poorly written documents, or complex family situations not adequately explained at the time the documents were prepared. If a Court finds a document to be ambiguous, the Court is allowed to then look at outside evidence to try and determine what was meant by the terms of the Will or Trust.

Determining Proper Meaning of Terms: A related, but somewhat different, issue arises when there is a disagreement regarding whether a provision of a Will or Trust has become effective. There can also be an issue of whether a proposed action of a Trustee or executor fits within the authorization listed in the documents or under state law. Examples include: whether a “no challenge” provision of a Will or Trust has been triggered by some action of a beneficiary; whether a Trustee is within his or her power in refusing to make a particular requested distribution; or whether a Trustee or person acting under a power-of-attorney was authorized to make a gift or change a beneficiary designation.

These types of cases are almost always very fact specific and require formal discovery in the form of deposition testimony of the attorney who prepared the document. Other discovery is typically directed at other witnesses to the document preparation and execution, and family members or other named beneficiaries. In addition, prior documents, notes, or correspondence often will prove vital in supporting, or defending against, a particular person.