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Keeping Current Probate

Keeping Current—Probate offers a look at selected recent cases, literature, and legislation. The editors of Probate & Property welcome suggestions and contributions from readers.

Keeping Current—Probate offers a look at selected recent cases, literature, and legislation. The editors of Probate & Property welcome suggestions and contributions from readers.

CASES

AMBIGUITY: Purported devise of property not owned by the testator creates latent ambiguity. Spouse conveyed a joint one-half interest in farm property to the other spouse and their child, Andy. After the spouses divorced, one spouse conveyed the one-half interest in the farm that the spouse had retained to a revocable trust. The beneficiaries of the revocable trust were the spouse’s children, but the ex-spouse was not a beneficiary. The spouse died and then the ex-spouse died with a will that purported to give “my one-fourth share” of what is described as the spouse’s “irrevocable trust” to Andy for life, then to another child for life. Andy began a construction action, and the trial court found that ex-spouse intended to give her interest in the spouse’s revocable trust to Andy for life. On appeal, the Georgia intermediate appellate court in Luke v. Luke, 846 S.E.2d 216 (Ga. Ct. App. 2020), reversed, holding that the devise to Andy created a latent ambiguity because ex-spouse had no interest in the trust (the court agreed with the trial court that the reference to the non-existent irrevocable trust was a scrivener’s error in referring to the revocable trust) and remanded for the consideration of parol evidence of the testator’s intent.

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