Also known as: latent ambiguity · latent ambiguity doctrine
Written by attorneys · grounded in primary & secondary sources — see below
An uncertainty in meaning within a donative document that is not apparent from the text alone but becomes apparent upon consideration of extrinsic evidence other than direct evidence of intention contradicting the plain meaning of the text. The uncertainty arises when language that appears clear on its face cannot be applied to external facts without confusion, such as a property description that does not match any asset the donor actually owns.
Landon Long's will devised the north forty acres of his Sunrise Road farm, described as Tract B-4 on the county plat, to his son. Surveys later revealed that Long never owned Tract B-4 but did own the north forty acres of the same farm within Tract D-4. The probate court admitted ownership records and plat evidence to identify the parcel Long actually intended to pass rather than allowing the devise to fail.
Thomas executed a will leaving his profits interest to siblings and their spouses and descendants who became attorneys in the litigation group and tried the biggest case. After execution, firm reorganization moved lawyers into hybrid roles and the biggest case settled without trial, leaving no one who literally satisfied both conditions. The probate court considered extrinsic evidence of Thomas's conversations to determine which family members he intended to benefit.
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A court may admit extrinsic evidence when the will's language appears clear on its face but cannot be applied to the testator's actual property or circumstances without confusion. The evidence must identify which asset or beneficiary the testator intended rather than contradict the plain text. Courts use the evidence to construe the description so the intended gift passes instead of failing.
A latent ambiguity is not apparent from reading the text alone and only emerges when extrinsic evidence is applied to external facts. A patent ambiguity appears on the face of the document itself. Modern authorities often treat both the same way for purposes of admitting evidence, but the classic distinction limits extrinsic evidence to latent cases.
Yes. When parties use a term that each reasonably understands differently and neither knows or has reason to know of the other's meaning, the term creates a latent ambiguity that prevents mutual assent. Courts examine the parties' pre-contract communications and circumstances to determine whether any shared meaning existed.
…Extrinsic Evidence in Will Interpretation Cases, 64 Mass. L. Rev. 123 (1979). In fact, however, the decedent’s bequest created a latent ambiguity. The gift to the “nephews and nieces of the Donor” posed problems in the identification of the intended donees. See Putnam v. Putnam , 366 Mass. 261, 266 (1974); Hardy v. Smith , 136…