Erie County Probate Court

Will Construction

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A complaint for will construction is filed when the language of a will does not clearly and definitely express or convey the testator’s intent or where the intention is obscured by virtue of inconsistencies in the use of words. Deficient grammar and poor expression do not raise the necessity to construe unless the intent of the testator is thereby in doubt.

Despite all of the possible questions that can be raised in the interpretation of the language of a will, the only true issues are intent, and effecting the intended result.

The function of the court in a will construction case is to determine and apply the testator’s intention, as expressed in the language of the whole will, read in the light of the circumstances surrounding its execution.

1. In the construction of a will, the sole purpose of the court should be to ascertain and carry out the intention of the testator.

2. Such intention must be ascertained from the words contained in the will.

3. The words contained in the will, if technical, must be taken in their technical sense, and if not technical, in their ordinary sense, unless it appears from the context that they were used by the testator in some secondary sense.

4. All the parts of the will must be construed together, and effect, if possible, given to every word contained in it.

5. If a dispute arises as to the identity of any person or thing named in the will, extrinsic facts may be resorted to, in so far as they can be made ancillary to the right interpretations of the testator’s words, but for no other purpose