Scheduling Open
6671 Southwest Fwy, Ste 490-A
By Appointment Only

Texas Courts Strictly Construe Language in Wills

The courts will generally enforce the terms of a valid will.  The focus is on the language of the will, not external evidence that suggests a different meaning for the language included in the will.  A good example of this can be found in Estate of Neal, No. 02-16-00381-CV (Ct. App.–Ft. Worth 2018), in which the court concluded that language in a will that disposed of “all other things owned,” but it did not provide for the transfer of his real estate.

The Facts & Procedural History

This case involves a will that was prepared in 2009.  The decedent died in 2014. 

The will provided that the decedent’s personal effects, tangible property, and “all other things owned by me at the time of my death” were to go to his niece. 

The court admitted the will to probate.

Larry’s daughter filed a petition seeking a court order that “all other things owned by me at the time of my death” did not include Larry’s real estate. 

The trial court concluded that this language included personal and real property.  Larry’s daughter appealed.

About Will Construction

Under Texas law, when a will is ambiguous, the court will attempt to construe its terms in a way that gives effect to the testator’s intent. An ambiguity exists when the language of the will is susceptible to more than one reasonable interpretation.

There are two types of ambiguities recognized in Texas will construction: patent and latent.

  1. Patent Ambiguity: A patent ambiguity is one that appears on the face of the will and is apparent from the language used. For example, a will that leaves “the family home” to a beneficiary, but does not specify which property is intended, would contain a patent ambiguity. When a patent ambiguity exists, the court will consider extrinsic evidence to determine the testator’s intent.
  2. Latent Ambiguity: A latent ambiguity is one that arises from a conflict between the language of the will and the circumstances surrounding its execution. For example, a will that leaves property to a named beneficiary who predeceased the testator would contain a latent ambiguity. When a latent ambiguity exists, the court will also consider extrinsic evidence to determine the testator’s intent.

In both cases, the court will look to the testator’s intent as the guiding principle in resolving the ambiguity.

Will Construction in Texas

When a will is presented for probate in Texas and it is ambiguous, the court will apply certain rules to construe, or interpret, the terms of the will.

The following are some of the rules that the court may apply:

  1. Plain Meaning Rule: The court will first look at the language of the will and give effect to its plain meaning, without resorting to outside evidence or extrinsic factors.
  2. Testator’s Intent: The court will attempt to determine the testator’s intent from the language of the will and the circumstances surrounding its execution.
  3. Residuary Clause: If there is a residuary clause in the will, it will generally control over other provisions of the will, unless there is clear evidence of a contrary intent.
  4. Hierarchy of Provisions: If there are conflicting provisions in the will, the court will look to a hierarchy of provisions to determine which provision controls. For example, specific bequests may take precedence over general bequests.
  5. Texas Estates Code: The court will also look to the Texas Estates Code for guidance in construing the terms of the will, including provisions related to will execution, revocation, and the rights of beneficiaries.
  6. Presumptions: The court may also apply certain presumptions, such as the presumption that a will was executed with testamentary intent, or the presumption that a testator did not intend to disinherit his or her spouse.

It is important to note that the rules of construction may vary depending on the specific language of the will and the circumstances surrounding its execution.

Texas Law for Interpreting Wills

The application of these will-construction rules varies widely from court to court.

In this case, the appeals court recited the standard Texas rules for interpreting the language in wills:

The cardinal rule for construing a will is that the testator’s intent must be ascertained by looking at the language and provisions of the instrument as a whole, as set forth within its four corners. The question is not what the testator intended to write, but the meaning of the words he actually used. Terms used are to be given their plain, ordinary, and generally accepted meanings unless the instrument itself shows them to have been used in a technical or different sense.

If possible, all parts of the will must be harmonized, and every sentence, clause, and word must be considered in ascertaining the testator’s intent. We must presume that the testator placed nothing meaningless or superfluous in the instrument. Where practicable, a latter clause in a will must be deemed to affirm, not to contradict, an earlier clause in the same will.

Whether a will is ambiguous is a question of law for the court. A term is not ambiguous merely because of a simple lack of clarity or because the parties proffer different interpretations of a term. Rather, a will is ambiguous only when the application of established rules of construction leave its terms susceptible to more than one reasonable meaning. If the court can give a certain or definite legal meaning or interpretation to the words used, the will is unambiguous, and the court should construe it as a matter of law.

These rules provide the framework for interpreting the language included in wills.

“All Other Things Owned” Does Not Include Real Property

In reading the “all other things owed by me at the time of my death” language, the appeals court concluded that it did not include real property.

The appeals court reached this conclusion by noting that the “all other things owned” language was tied to examples that only included personal property.  The full language was “all other things owned by me at the time of my death, including cash on hand in bank accounts in my own name, or companies[`] names, or securities, or other intangibles.”

This language linking the “all other things owned” to personal property caused the appeals court to reason that Larry had intended to exclude real property.

About Declaratory Judgment Actions in Texas

Many will construction cases are brought before the courts as declaratory judgment actions.

In Texas, a declaratory judgment is a legal action that allows a court to issue a binding judgment regarding the interpretation of a legal document or the rights and obligations of the parties involved. A declaratory judgment can be sought to construe a will, meaning to determine the meaning and effect of the will’s provisions.

To seek a declaratory judgment to construe a will in Texas, a person with a legitimate interest in the will can file a petition with the appropriate court. The petition must identify the parties involved, describe the issue to be resolved, and request that the court declare the meaning and effect of the disputed provision(s) of the will.

Once the petition is filed, the court will typically schedule a hearing and allow the parties to present evidence and arguments. The court will then issue a judgment construing the will, which will be binding on all parties involved.

Traditional Will Construction Suits

In some cases, a will construction suit may also involve claims for harm caused by the actions of another party who took an incorrect interpretation of the will.

For example, if a person wrongfully takes property that they believe was left to them in a will, but the will is later construed to provide that the property belongs to someone else, the person who wrongfully took the property may be liable for conversion or theft.

Similarly, if a purported executor of a will takes actions that harm the interests of the beneficiaries or violate their rights, such as by mismanaging estate assets or failing to distribute property according to the terms of the will, the beneficiaries may seek to have the executor removed and may also pursue other legal claims, such as breach of fiduciary duty.

In some cases, a will construction suit may involve claims for the return of property or other relief, such as an injunction to prevent further harm. These claims may be brought in addition to or instead of a declaratory judgment to construe the will.

The Takeaway

The importance of carefully considering the language used in a will cannot be overstated, as this can help to avoid ambiguity and potential legal disputes down the line. Failure to properly include or exclude property in a will can lead to expensive litigation, which can be emotionally and financially draining for all involved. Therefore, it is crucial to seek the advice of an experienced attorney in Texas probate law to ensure that the terms of a will are clear, unambiguous, and accurately reflect the testator’s intentions. By taking these steps, individuals can help to minimize the risk of costly legal battles and ensure that their wishes are carried out in a timely and effective manner.

If you need help with your Texas probate matter, call us today for a FREE attorney consultation at (281) 219-9090.

Our Houston Probate Attorneys provide a full range of probate services to our clients, including helping with will construction suits. Affordable rates, fixed fees, and payment plans are available. We provide step-by-step instructions, guidance, checklists, and more for completing the probate process. We have years of combined experience we can use to support and guide you with probate and estate matters. Call us today for a FREE attorney consultation.


The content of this website is for informational purposes only and should not be construed as legal advice. The information presented may not apply to your situation and should not be acted upon without consulting a qualified probate attorney. We encourage you to seek the advice of a competent attorney with any legal questions you may have.

Immediate DownloadFREE Access to Our Texas Probate Guide

Don't miss out, get a copy today!

Related Posts