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In drafting a will or setting up a trust, most people assume that their wishes are clear. However, errors or ambiguities cause confusion when the will is probated or the trust is administered. Unforeseen circumstances may change the meaning of a will, or unclear language may cast doubts on who will inherit which assets. 

In these cases, California probate courts generally stress the importance of the original intent of the person who created the will or trust (the testator). To resolve ambiguities and protect the integrity of the testator’s wishes, extrinsic evidence is often used to clarify the language of a will.

A defective or confusing will can lead to prolonged legal battles as well as emotional strife. Our California probate litigation lawyers represent those who are struggling to clarify a loved one’s true intentions in ambiguous wills and trusts. We can review the legal documents and protect your interests in probate mediation or in court. If evidence exists that can clarify certain ambiguities, then we can assist you in submitting it to the probate court.


There are many factors that may contribute to confusion in a will or trust. Sometimes, a will may have been drafted years ago, and new laws, regulations or family developments may conflict with the original language. 

In other cases, simple errors or omissions may confuse the testator’s intent. Every will is different, and therefore each may contain unique ambiguities. However, the general categories of potential uncertainties include:

  • Patent ambiguity. This is a contradiction or vague area that is obvious in the will. This means there is a problem with the language itself, without considering the circumstances. For example, the will may name a beneficiary but fail to specify the exact amount.

  • Latent ambiguity. This kind of ambiguity occurs when the language appears clear, but the actual circumstances make it unclear. For example, if a testator has two relatives with the same or similar names, this may cause confusion. There are two general types of latent ambiguity: equivocation and misdescription. An equivocation occurs when the language in a will may apply to two or more objects or people. A misdescription is when part of a description is incorrect, such as misstating a beneficiary’s middle name, for instance.

  • Scrivener’s error. This is a mistake made by the person writing the will, often a lawyer or someone other than the testator. Common scrivener’s errors include the omission of a word, misspellings and other drafting mistakes.


In many cases, extrinsic evidence will resolve confusion in a will or in the terms of the trust. This is outside evidence that can resolve a patent ambiguity, latent ambiguity and/or scrivener’s error. Often, a probate judge will allow the admission of extrinsic evidence to preserve the testator’s original intent. This may require a reformation of the will or trust.

However, each case is different, and sometimes the courts may uphold the plain meaning of the document. If so, extrinsic evidence cannot add or subtract from the will or terms of the trust, although small ambiguities may be clarified.

Notably, California probate courts usually recognize the personal usage exception. This admits extrinsic evidence to clarify certain language that the testator uses repeatedly. For example, a will may refer to a beneficiary by a nickname, rather than his or her legal name. Evidence such as a letter or witness testimony may clarify to whom this nickname refers. Additionally, the court will often overlook small errors and/or omissions according to the harmless error rule. This is true as long as the testator’s original intent is clear.


California probate lawyer Charles Triay has been assisting with the interpretation of ambiguous wills and trusts in California for over 30 years. 

As a certified specialist in probate and trust law, he can offer expert advice on your situation and explain your options as a beneficiary. Triay Law Office also give you the option of paying attorney fees on a contingent or hourly basis, unlike most law firms.

Call our Bay Area probate litigation attorneys for a consultation at 510-463-3170 or contact us online if you have questions or wish to get started.

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  • Probate is the legal process of administering a deceased person’s last will and testament or according to intestate law. Certain trusts only go into effect upon the death of the testator, and may therefore be part of a probate administration. California probate courts oversee probate administration and probate litigation.

  • Probate litigation is the term for a lawsuit when a party, such as an heir, beneficiary, creditor, third party or omitted spouse contests a will. Probate litigation also includes charges against fiduciaries of trusts or estates, or creditors’ claims against an estate.

  • There are several different reasons for contesting a will. For example, claims of undue influence and lack of capacity are common causes for probate litigation. Some individuals may argue that the will is defective, or that the estate trustee is breaching a fiduciary duty. If you are an omitted spouse or if your spouse leaves you less than required by California law, you may have a claim against the estate as part of your spousal rights.

  • A fiduciary duty is the obligation to act honestly, fairly and in good faith when handling the deceased person’s estate. There are multiple fiduciary duties that executors, administrators and trustees are legally required to follow, including keeping proper accountings of all investments, as well as money going in and out of the trust or estate. Violation of this duty or poor performance in administrating the estate may result in legal action by the estate’s beneficiaries.

  • Just as in all types of civil litigation, the law allows you to represent yourself in a probate proceeding. However, we strongly advise having a seasoned probate litigation lawyer handle your case to ensure that California probate law upholds your best interests.​

  • Even in death, a person is liable for their debts. For example, creditors may bring claims against a person’s estate after their death to receive payment.

  • A codicil is a document that makes small changes to the terms of a last will and testament. An individual may use codicils when they want to amend their last wishes without having to create an entirely new will. A codicil will only be legally valid and enforceable if executed in the same manner as a will. Codicils are particularly useful upon remarriage, additional children born, or new property acquired by an estate.​

  • If a person dies without a will, then California intestacy laws will dictate the division of their estates to the heirs at law. These laws will then distribute property and assets depending on the marital status, number of children and surviving relatives of the deceased individual.

About Triay Law Office

Probate litigation attorney Charles Triay has specialized in California probate litigation matters for over 30 years.

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4 Orinda Way Suite 200-Dorinda, CA 94563


4 Orinda Way Suite 200-D

Orinda, CA 94563


4 Orinda Way Suite 200-D

Orinda, CA 94563

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