Also known as: latent ambiguity · latent ambiguity doctrine
Written by attorneys — see sources 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.
Erika Fabian brought suit against attorney Ross M. Lindsay, III and his firm Lindsay & Lindsay after a trust drafted for her uncle failed to carry out his intended distributions. On May 25, 1990, Dr. Denis Fabian, then approximately eighty years old, executed the trust agreement prepared by the respondents. Dr. Fabian named his wife Marilyn as the life beneficiary of the trust. Dr. Fabian had one living brother, Eli Fabian, in his seventies and in poor health, and two nieces: Miriam Fabian, Eli's daughter, and Erika Fabian, the daughter of Dr. Fabian's predeceased brother Zoltan. Dr. Fabian and his wife had told Erika that she would receive a share of the estate. Dr. Fabian died on February 5, 2000, and Eli died a few weeks later, so Eli survived Dr. Fabian but not the life beneficiary. After Dr. Fabian's death the respondents sent Erika Fabian a letter and two pages of the trust instrument stating she would receive nothing because the share intended for her would pass to Eli's estate. The disputed provision directed the trustee, upon the death of the survivor of Dr. Fabian and his spouse, to divide the trust into two shares, one for Marilyn's children and one for Eli, with alternate gifts to Miriam and to Erika if Eli predeceased the testator; the clause used the word "me" rather than language keyed to the survivor's death. Miriam stood to receive both her own share and Erika's share. Erika Fabian filed a reformation action against the trustees. Two trustees agreed the document contained a drafting error and supported reformation, while Miriam and the drafting attorney opposed it. After years of litigation Erika accepted a settlement funded by the trust but expressly reserved any claims against the respondents. She then filed the present action asserting professional negligence and breach of contract as a third-party beneficiary. The circuit court granted the respondents' Rule 12(b)(6) motion and dismissed both claims, holding that South Carolina law required privity and that no cause of action existed for an intended beneficiary of estate planning documents. Erika appealed, and the Supreme Court of South Carolina certified the appeal from the Court of Appeals pursuant to Rule 204(b), SCACR.
View caseA 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.
…had but one heir, notwithstanding the added words 'to be divided among them equally, share and share alike,’ there was no latent ambiguity or equivocation in the will itself which would permit the introduction of the statements of the testatrix to prove her testamentary intention.” Certain first cousins have appealed from the…