Estate planning attorneys draft wills carefully, reviewing every provision to ensure the document accomplishes the testator’s wishes. Yet even the most carefully prepared wills sometimes contain errors. A paragraph reference might be wrong. A bequest might refer to property the testator no longer owns. The will might describe a gift but fail to name a beneficiary. These drafting mistakes create ambiguity about how property should pass after death.
When wills contain errors or ambiguities, courts must interpret them to determine the testator’s intent. Should property subject to a failed bequest pass through intestacy—distributed according to statutory default rules to heirs—or should it fall into the residuary estate and pass according to the will’s catchall provision? The answer can change the whole estate plan in some cases. Intestacy laws distribute property to blood relatives in specific percentages that might not reflect the testator’s actual wishes. Residuary clauses often direct property to spouses, charities, or specifically chosen beneficiaries.
Texas law establishes a strong presumption that testators who execute wills intend to dispose of all their property through those wills rather than dying partially intestate. This presumption is especially important when wills contain residuary clauses. How strong is this presumption? What evidence can overcome it? Can a reference to a failed gift demonstrate the testator’s intent to die partially intestate? A recent Texas appellate decision, Dudley v. Jake & Nina Kamin Foundation, No. 01-12-00579-CV, 2014 WL 315092 (Tex. App.—Houston [1st Dist.] Jan. 28, 2014, no pet.) (mem. op.), provides an opportunity to examine how courts interpret wills when errors create ambiguity about whether property should pass through intestacy or under residuary clauses.
Facts & Procedural History
Jake signed his Last Will and Testament in 2008. At the time of his death, Jake was married to Nina. He had four living grandchildren: Lisa, Cindi, Kristen, and Gunnar. Jake’s will disposed of his property through a series of specific bequests and a residuary clause.
The residuary clause provided: “I give all of the remainder of my estate, including any of the above gifts that lapse (‘my residuary estate’): (a) If my wife survives me, to the trustee of the Nina Nathan Kamin Marital Trust. (b) If my wife does not survive me, to the Jake and Nina Kamin Foundation.”
The will also included a paragraph describing Jake’s “Separate Property.” This paragraph stated: “The gift under Paragraph A-3(b) of one-half of my separate property shall include those assets (other than the items expressly excluded from such gift)…. My wife and I have kept careful records indicating which assets comprise our community estate and which our respective estates… for purposes of the gift under Paragraph A-3(b).”
The problem was clear: Paragraph F-3 referenced a gift under Paragraph A-3(b), but there was no Paragraph A-3(b) in the will. The will contained no provision actually making a gift of one-half of Jake’s separate property to any named beneficiary.
Jake passed away in 2010. Nina died one year after Jake. Following Nina’s death, the property in the marital trust passed to the Jake and Nina Kamin Foundation according to the trust’s terms. The grandchildren filed a declaratory judgment action in probate court to construe the will. The Foundation filed a counterclaim and cross-claim for declaratory judgment.
The grandchildren argued that Jake intended to make a specific bequest of one-half of his separate property but that this gift failed for want of a beneficiary. They contended that because Paragraph F-3 referenced this intended gift, Jake must have intended for that property not to be part of his residuary estate. Therefore, they argued, one-half of Jake’s separate property should pass through intestacy rather than under the residuary clause. Under Texas intestacy law, the grandchildren would inherit this property as Jake’s descendants.
The Foundation countered that the entire estate passed through the specific bequests and residuary clause. The Foundation argued that Jake did not die partially intestate and that any property not disposed of through specific bequests passed under the residuary clause to Nina’s marital trust and ultimately to the Foundation.
The probate court ruled in favor of the Foundation, holding that Jake did not die partially intestate and that the entire estate passed through the specific bequests and residuary clause. The grandchildren appealed.
What Is the Presumption Against Intestacy?
Texas law presumes that testators who execute wills intend to dispose of all their property through those wills. Courts assume testators don’t intend to die partially intestate when they have valid wills at the time of death. This presumption reflects common sense: the mere act of making a will demonstrates that the testator intended to control how property would be distributed after death rather than leaving distribution to statutory default rules.
The presumption serves important purposes. It honors testator intent by assuming people who go to the effort of executing wills want those wills to control their entire estates. It promotes predictability by creating a default interpretation rule that applies absent clear contrary evidence. It avoids the complications of mixing testate and intestate succession, which can create administrative difficulties and uncertainty about property distribution.
The presumption against intestacy affects will construction in concrete ways. When a will is open to two constructions—one that prevents intestacy and one that results in partial intestacy—courts adopt the construction preventing intestacy. This interpretive principle guides courts facing ambiguous will language.
Understanding what “partial intestacy” means helps clarify what’s at stake. Someone dies partially intestate when they have a valid will disposing of some property but other property passes through intestacy laws. For example, if a will specifically bequeaths a house and car but doesn’t address bank accounts or other assets, those unaddressed assets pass through intestacy. The estate is partly testate (governed by the will) and partly intestate (governed by statutory distribution rules).
Why Is the Presumption Especially Strong with Residuary Clauses?
The Texas Supreme Court has pronounced the presumption against intestacy “especially strong” when wills contain residuary clauses. Understanding why requires understanding what residuary clauses do and why testators include them.
A residuary clause is a catchall provision that disposes of property not specifically mentioned in other will provisions. Rather than attempting to list every asset they own, testators typically make specific bequests of particular items or amounts and then include a residuary clause disposing of “all the rest, residue, and remainder” of their property. This structure ensures the will addresses the entire estate without requiring the testator to inventory every asset.
The basic purpose of residuary clauses is to prevent partial intestacy. These clauses serve as safety nets, catching any property not disposed of through specific bequests. Without residuary clauses, property the testator failed to specifically bequeath would pass through intestacy even though the testator executed a will.
When a will contains a residuary clause, courts presume the testator intended that clause to dispose of any property not passing through specific bequests. This presumption makes logical sense. If the testator wanted certain property to pass through intestacy, why include a residuary clause designed to prevent intestacy? The presence of a residuary clause signals the testator’s intent to dispose of the entire estate through the will.
The strength of this presumption means parties arguing for partial intestacy face a heavy burden. They must point to specific language in the will demonstrating the testator’s intent to die partially intestate. Ambiguity alone won’t suffice. The will must contain affirmative evidence that the testator wanted particular property to pass outside the will through intestacy laws.
What Qualifies as a Specific Bequest?
To understand the dispute in Kamin, we need to understand what constitutes a specific bequest. The grandchildren argued that Paragraph F-3’s reference to “the gift under Paragraph A-3(b) of one-half of my separate property” demonstrated Jake intended to make a specific bequest of half his separate property, even though the referenced paragraph didn’t exist.
Texas law doesn’t require special language for clauses to be interpreted as specific bequests. A clause qualifies as a specific bequest if it uses “language sufficiently clear and unequivocal to show an intention that the property designated pass to the beneficiary named.” Three elements are required: the name of the beneficiary, language sufficiently clear to show intent to pass property, and identification of the property to be gifted.
The intent to create a specific bequest must appear from the words of the will itself. Courts focus on what the testator actually wrote, not what the testator might have intended to write. This focus on actual language rather than subjective intent prevents courts from rewriting wills based on speculation about what testators would have wanted.
In Kamin, Paragraph F-3 identified property (one-half of Jake’s separate property) and used language suggesting intent to make a gift (“the gift under Paragraph A-3(b)”). However, it failed to name a beneficiary. The referenced Paragraph A-3(b) didn’t exist, so no beneficiary was identified anywhere in the will for this gift. Without a named beneficiary, no valid specific bequest existed.
This missing element proved fatal to the grandchildren’s argument. They couldn’t point to any provision in the will actually making a gift of half Jake’s separate property to anyone. Paragraph F-3 referenced such a gift but didn’t create one. A reference to a nonexistent bequest isn’t the same as an actual bequest.
What Happens When Specific Bequests Fail?
Specific bequests can fail for various reasons. The beneficiary might predecease the testator. The testator might no longer own the specifically bequeathed property at death. Or, as in Kamin, the bequest might fail because no beneficiary was properly identified.
When specific bequests fail, what happens to the property? The traditional common-law rule treated lapsed bequests differently from residuary estates. Under the old rule, property subject to a lapsed bequest didn’t become part of the residuary unless the testator expressly stated that intent in the will. Instead, lapsed bequests passed through intestacy.
However, Texas changed this rule through statute. Current Texas law provides that lapsed bequests pass into the residuary unless a specific intent to the contrary is shown. This statutory rule aligns with the presumption against intestacy. It assumes testators who included residuary clauses intended those clauses to catch failed specific bequests along with any other property not specifically disposed of.
The grandchildren in Kamin relied on an old case applying the former rule that lapsed bequests don’t pass into the residuary. However, the Court of Appeals noted that case had been superseded by the current statutory rule. Under current law, failed or lapsed bequests pass into the residuary estate unless the will contains specific language indicating contrary intent.
This rule change reflects evolving understanding of testator intent. Modern courts recognize that testators who include residuary clauses almost always intend those clauses to serve as complete safety nets. They want the residuary clause to catch anything that doesn’t pass through specific bequests, regardless of why those specific bequests failed.
Can Reference to a Failed Gift Show Intent to Die Intestate?
The grandchildren’s core argument was that Paragraph F-3’s reference to “the gift under Paragraph A-3(b)” demonstrated Jake’s intent to make a specific bequest of half his separate property. Even though this gift failed for want of a beneficiary, the grandchildren argued the reference showed Jake intended this property not to be part of his residuary estate. They claimed the failed gift should pass through intestacy rather than under the residuary clause.
The Court of Appeals rejected this argument decisively. The court explained that the existence of a failed gift cannot be taken as evidence of intent to die partially intestate when Texas law uses a contrary presumption. The law presumes that failed gifts pass into the residuary estate. Using a failed gift as evidence of contrary intent would contradict this presumption.
This reasoning makes logical sense. If courts treated references to failed gifts as evidence of intent to die intestate, the presumption that failed gifts pass into the residuary would have no practical effect. Any time a specific bequest failed, contestants could point to the will’s reference to that bequest as evidence the testator didn’t intend the property to fall into the residuary. This interpretation would effectively revive the old common-law rule that Texas replaced through statute.
The court emphasized that it need not decide whether Jake subjectively intended to make a specific bequest of half his separate property. Even assuming Jake subjectively intended such a gift, the gift would fail for want of a named beneficiary. The question then became simply whether Jake died intestate as to that property. Given Jake’s execution of a will containing a residuary clause, the strong presumption against intestacy applied.
The grandchildren couldn’t point to any language in the will affirmatively stating that Jake wanted half his separate property to pass through intestacy. They had only the reference to a failed bequest. That reference showed a drafting error occurred but didn’t overcome the powerful presumption that testators with residuary clauses intend to dispose of their entire estates through their wills.
The Takeaway
Texas law establishes a strong presumption that testators who execute wills intend to dispose of all their property through those wills rather than dying partially intestate. This presumption is especially important when wills contain residuary clauses designed to prevent partial intestacy by disposing of any property not specifically bequeathed. The mere existence of a drafting error—such as a reference to a nonexistent paragraph—doesn’t overcome this presumption. Courts interpreting wills with such errors will often presume that property subject to failed or incomplete bequests passes under residuary clauses unless the will contains specific language demonstrating contrary intent.
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