Patent Ambiguity vs. Latent Ambiguity in Written Instruments

A patent ambiguity is an ambiguity in a written instrument (e.g., a contract, a will, a trust, etc.) produced by the uncertainty, contradictoriness, or deficiency of the language of the instrument, so that no discovery of facts, or proof of declarations, can restore the doubtful or smothered sense without adding ideas which the actual words will not themselves sustain.

A latent ambiguity in an instrument is where the equivocality of expression, or obscurity of intention, does not arise from the words themselves, but from the ambiguous state of extrinsic circumstances to which the words of the instrument refer, and which is susceptible of explanation by the mere development of extraneous facts, without altering or adding to the written language, or requiring more to be understood thereby than will fairly comport with the ordinary or legal sense of the words and phrases made use of.

Reference Desk

National Union Fire Ins. Co. v. CBI Industries, Inc., 907 S.W. 2d 517 (Tex. 1995):

An ambiguity in a contract may be said to be “patent” or “latent.” A patent ambiguityis evident on the face of the contract.  A latent ambiguity arises when a contract which is unambiguous on its face is applied to the subject matter with which it deals and an ambiguity appears by reason of some collateral matter.  If a latent ambiguity arises from this application, parol evidence is admissible for the purpose of ascertaining the true intention of the parties as expressed in the agreement.

Closing Brief; CA Superior Court Case No. ________:

“An ambiguity arises when language may be applied in more than one way.”  In re Estate of Dye (2001) 92 Cal.App.4th 966, 976.  Stated differently, a document is ambiguous “when, in the light of the circumstances surrounding execution of the instrument, ‘the written language is fairly susceptible to two or more constructions.’”  In re Estate of Ruessell (1968) 69 Cal.2d 200, 211see also Gianmarrusco v. Simon (2009) 171 Cal.App.4th 1586, 1597-1599 (identifying ambiguity where there is a conflict between two provisions in a trust).

To show ambiguity, a claimant must offer a reasonable alternative explanation for the language used.  Estate of Russell, 69 Cal.2d at 214-215; County of San Joaquin v. Workers’ Comp. Appeals Bd. (2009) 117 Cal.App.4th 1180, 1185-1186 (holding that challengers failed to show ambiguity in language where they failed to offer any alternative candidate of meaning); Niles Freeman Equipment v. Joseph (2008) 161 Cal.App.4th 765, 780-781 (holding that a party failed to show that language was ambiguous where the “candidate of meaning” urged by that party could not reasonably account for the language chosen because it added a new concept);  Estate of Dye, supra, 92 Cal.App.4th at 976-977 (holding that the claimant failed to make the initial showing that a “semantic ambiguity existed).

Ambiguities may be either patent or latent.  2 Witkin, Evidence (4th ed. 2005), Documentary Evidence §§ 76-77, pp. 195-196.  “A patent ambiguity is an uncertainty which appears on the face of the [instrument].”  Estate of Russell, supra, 69 Cal.2d at 207.  By contrast, a “latent ambiguity is one which is not apparent on the face of the [instrument] but is disclosed by some fact collateral to it.” Id.

There are two classed of testamentary instrument present latent ambiguities.  “The one class is where there are two or more persons or things exactly measuring up to the description and condition of the will . . . [T]he other class is where no person or thing exactly answer the declarations and description of the will but where the two or more persons or things in part though imperfectly do so answer.”  Id. at 207; accord In re Estate of Donnellan (1912) 164 Cal. 14, 20.

Extrinsic evidence always may be introduced initially in order to show that under the circumstances of a particular case the seemingly clear language of [an instrument] . . . actually embodies a latent ambiguity.”  Estate of Russell, supra, 69 Cal.2d at 207; Winet v. Price (1992) 4 Cal.App.4th 1159, 1165 (“The decision whether to admit parol evidence involves a two-step process.  First, the court provisionally receives (without actually admitting) all credible evidence concerning the parties’ intentions to determine ‘ambiguity’ i.e., whether the language is ‘reasonably susceptible’ to the interpretation urged by the party.  If in light of the extrinsic evidence the court decides the language is ‘reasonable susceptible’ to the interpretation urged, the extrinsic evidence is then admitted to aid in the second step – interpreting the contract.”).

Importantly, however, while extrinsic evidence as to the circumstances under which a written instrument was made is admissible to interpret the instrument, a court many not rely on that evidence to give the instrument a meaning to which it is not reasonably susceptible.  In re Estate of Lensch (2009) 177 Cal.App.4th 667, 674-675 (“[A]ny proffered evidence attempting to show an intention different from that expressed by the words therein, giving them the only meaning to which they are reasonably susceptible, is inadmissible.”); In re Estate of McAuliffe (1955) 132 Cal.App.2d 476, 489 (Court will not impute ambiguity to otherwise “simple clear and specific” language evidencing testator’s intent); Citizens Business Bank v. Carrano (2010) 189 Cal.App.4th 1200, 1208 (court refused to find ambiguity where the petitioner’s offered definition of the term “issue” conflicted with that provided in the trust document).

In re Estate of Dominici (1907)  151 Cal.181 illustrates an archetypical circumstance under which a will may be reasonably susceptible to two different interpretations.  The testator in Dominici executed a codicil to is will stating:

I hereby bequeath, give and devise [a portion of my estate] to the two other legatees herein named, Heinrich Schluter, and to his sister, my niece, whose name is Marie Kohler, and whose residence is Salzwedel, Altmark, Germany.

Id. at 184.

The Dominici court received extrinsic evidence demonstrating that no person exactly fit the testator’s description.  While Heinrich did have one sister, her name was Christiane Schluter, and she lived in Luchow, Germany.  The testator had another niece, the daughter of a different sister of the testator, who – as described in the codicil – was named Marie Kohler and lived in Salzwedel, Altmark, Germany.  Thus, no person exactly answered the description in the codicil, but both women satisfied different portions of the definition.  Based on this evidence, the court found that the codicil was ambiguous.  Id.

By contrast, in Estate of Russell, supra, 69 Cal.2d 200 – the seminal case addressing ambiguities in testamentary instruments – the Supreme Court found the language of a holographic will, written on a small card to be unambiguous.  The court did so even though, as written, the language appeared the defeat the testator’s perceived true intent.

The front of the Card read:

Turn the card:

March 18-1957

I leave everything

I own Real &

Personal to Chester

H.Quinn & Roxy Russell

Thelma L. Russell

The reverse side of the card reads:

My ($10) Ten dollar gold

Piece and diamonds I leave

To Georgia Nan Russell

Alverata, Georgia [sic]

Id. at 203.

The trial court considered extrinsic evidence to determine whether the language was ambiguous.  Evidence showed that Chester Quinn was the testatrix’s close friend and companion and Roxy Russell was testatrix’s pet dog which was alive on the date of the execution of the will but which had predeceased her.  Id. at 203.  The trial court held that the language of the will was ambiguous.  Although the will did not explicitly say so, the court believed that the testatrix actually intended for Quinn to receive the entire estate, excepting the specific bequests, and for Quinn to care for the dog using the proceeds from the estate.  Id. at 204.

The Supreme Court reversed, holding that whether or not she meant to, the testatrix had made her bequest to the dog and the bequest was legally invalid.  Id. at 213-215.  The Supreme Court chastened the lower court for failing to restrict itself to interpretation of the words actually used in the instrument.

Specifically, the court observed:  “The rule is well established that where the meaning of the will, on its face, taking the words in the ordinary sense, is entirely clear, and where no latent ambiguity is made to appear by extrinsic evidence, there can be no evidence of extrinsic circumstances to show that the testatrix intended or desired to do something not expressed in the will.”  Id. at 208 (emphasis added).  As for latent ambiguities, the Supreme Court observed that such ambiguities exist when the language of a written instrument is “reasonably susceptible” to more than one interpretation.  Otherwise, the extrinsic evidence is not permitted to show a different intent.  Id. at 211-212 (“If, on the other hand, in the light of such extrinsic evidence, the provisions of the will are not reasonably susceptible of two or more meanings, there is no uncertainty arising upon the face of the will and any proffered evidence attempting to show an intention different from that expressed by the words therein, giving them the only meaning to which they are reasonably susceptible, is inadmissible.”).

Applying the foregoing principles, the Supreme Court in Russell reversed the ruling of the trial court that had relied on extrinsic evidence to give the will a meaning that it was not reasonably susceptible to.  The Supreme Court rejected the trial court’s interpretation of the will.  The court found that the terms of the will were not reasonably susceptible to the meaning proffered by Quinn because no words of the will actually stated that Quinn was to receive the entire sum provided if he cared for the dog.  Id. at 214-215.  Instead, the court held, the only meaning to which the will reasonably could be susceptible was that the decedent intended to leave the dog and Quinn her estate in equal shares as tenants in common.  Because the dog was unable to recover under the will, its portion would pass to decedent’s heirs at law.  Id. at 216; see also Citizens Business Bank, supra, 189 Cal.App.4th at 1208 (“If Charles and Serena intended Christopher’s issue only to include children who are biologically related to him and the issue of a legal marriage, they could have said so.  Extrinsic evidence of any type cannot be used to reach an interpretation which substitutes affirmative dispositive language for silence.  That would amount to rewriting the will.”).

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