Sometimes the rights of interested parties as set forth in the Will or Trust are not clear thus requiring a judicial proceeding to construe the Testamentary Document. Litigation to construe the Will or Trust may result from poor planning, facts not considered when drafting the Will or Trust, or changes in circumstances that did not exist or may not have been considered when the Will or Trust was drafted.
When construing the language in a Will or Trust, the intent of the Testator / Settlor is paramount. However, there are some rules of construction which have been codified by state law and/or prior case precedents.
A good Estate Planning attorney is aware of these rules of construction and can draft a document to avoid the consequences of these laws/cases if the provisions of the law or prior cases are contrary to the intentions of the Settlor / Testator.
An example of such a codified rule of construction is the antilapse statute which provides that a bequest to a grandparent or lineal descendant of a grandparent (uncle, aunt, mother father, brother, sister etc.) of the Testator who predeceases the Testator will not fail or lapse. Rather, the descendants of the deceased beneficiary will receive the bequest.
If the Testator / Settlor does not want the descendants of a beneficiary covered by the antilapse statute to inherit if the beneficiary predeceases the Settlor / Testator, the Will or Trust can specifically provide that the bequest lapses upon the prior death of the beneficiary and the language of the Will or Trust will control.
In Florida, a provision in a Will or Trust purporting to penalize any interested person for contesting the Will or Trust or instituting other proceedings relating to the Estate or Trust is unenforceable.