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Ambiguous Residuary Clause in Will Causes Difficulty

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Residuary Clause

Your will should accomplish at least three simple things. It should identify who will manage the estate (the “personal representative”, in Arizona). The will should identify individual items, dollar amounts or percentages that are to go to particular recipients. Finally, the will should include a “residuary clause” — a statement about who will receive the rest of the estate.

Why do you need a residuary clause, if you list every asset you own? Because you can’t predict every variation on sequences of death, property ownership and transfers, and unusual fact patterns. Who should you name as beneficiary in your residuary clause? The person (or persons, or entities) you would like to have receive the rest of your estate. It’s entirely up to you, but you should have some provision.

Here’s what an Arizona residuary clause might look like: “I leave the rest of my estate to my children, in equal shares, by right of representation.” Don’t have children? Try this: “I leave the rest of my estate to my good friend Mary Smith or, if she does not survive me, to her children in equal shares.”

What can go wrong

The precise language of your residuary clause is not usually the important concern. Instead, it is usually enough to just include a provision, in language clear enough to make disposition of any remaining estate.

Sometimes, though, the language ends up being unclear. That was the case in a recent Massachusetts probate court case involving an inadequate residuary clause.

Edith Sampson (not her real name) had lived with her life partner for a number of years, but they were not married. He helped her write a will, using a sample form that a friend had given him. Her will indicated that she had some clear notions about who should get what from her estate.

The will left a gift of $20,000 to a favorite charity. It then provided that a portion should be held in a trust to help her partner pay his share of the costs of managing the house they had owned together. Another portion would go to her partner outright. A number of smaller bequests (from $500 to $10,000) were made to sixteen individuals and charities. The will then left Edith’s car and personal property to her partner.

The residuary clause of Edith’s will was what created the problem, however. After all the individual bequests, it provided that “any monies remaining in my estate” should be given to Edith’s partner. The problem: the main item not provided for by her residuary clause was her one-half interest in the family home where she — and her brother — grew up.

The flawed residuary clause

When Edith’s parents died, they had left the family home to her and her brother. She still had a half-interest in the property, though her brother lived there. Two years after Edith’s death, her brother also died. Now the problem was what to do with her half of the house.

Edith’s family argued that she had made no provision for disposition of real property. Her residuary clause addressed only “monies”, and so (they argued) she had died partially intestate. In other words, her will was simply silent as to what should happen to the house, and it therefore went to her next of kin. It was as if she had no will at all — at least as to the family home.

Edith’s partner, however, argued that her residuary clause should be read more broadly. It clearly indicated her intention that the rest of her estate should go to him. The fact that she referred only to “monies” was just a slip of language, and should not be used to defeat her obvious intentions.

Besides, argued the partner, the law disapproves of intestacy. If it is possible to read the will as including all of her assets, that helps defeat intestacy and it should be the probate court’s goal.

The Massachusetts probate court agreed with Edith’s family, and found that she had died partially intestate. The family home would go to her brother’s estate — and ultimately to his heirs and devisees.

The Court of Appeals

The Appeals Court of Massachusetts agreed with the probate court, and affirmed its ruling. The use of “monies” in her residuary clause could not be twisted into a bequest of real estate, reasoned the appellate court. Edith’s family will end up with the family home. Roth v. Newpol, May 31, 2017.

It helps to understand the concept of “intestate succession.” When someone dies without having made a will at all, they are said to have died intestate — Latin for “without a will.” Each state’s laws define who then takes the decedent’s property, but the intestate heirs are almost always spouses, then children (or their descendants), then parents (or their descendants). Longtime partners, though they may resemble spouses in many regards, are not on that list.

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Robert B. Fleming


Robert Fleming is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. He has been certified as a Specialist in Estate and Trust Law by the State Bar of Arizona‘s Board of Legal Specialization, and he is also a Certified Elder Law Attorney by the National Elder Law Foundation. Robert has a long history of involvement in local, state and national organizations. He is most proud of his instrumental involvement in the Special Needs Alliance, the premier national organization for lawyers dealing with special needs trusts and planning.

Robert has two adult children, two young grandchildren and a wife of over fifty years. He is devoted to all of them. He is also very fond of Rosalind Franklin (his office companion corgi), and his homebound cat Muninn. He just likes people, their pets and their stories.

Elizabeth N.R. Friman


Elizabeth Noble Rollings Friman is a principal and licensed fiduciary at Fleming & Curti, PLC. Elizabeth enjoys estate planning and helping families navigate trust and probate administrations. She is passionate about the fiduciary work that she performs as a trustee, personal representative, guardian, and conservator. Elizabeth works with CPAs, financial professionals, case managers, and medical providers to tailor solutions to complex family challenges. Elizabeth is often called upon to serve as a neutral party so that families can avoid protracted legal conflict. Elizabeth relies on the expertise of her team at Fleming & Curti, and as the Firm approaches its third decade, she is proud of the culture of care and consideration that the Firm embodies. Finding workable solutions to sensitive and complex family challenges is something that Elizabeth and the Fleming & Curti team do well.

Amy F. Matheson


Amy Farrell Matheson has worked as an attorney at Fleming & Curti since 2006. A member of the Southern Arizona Estate Planning Council, she is primarily responsible for estate planning and probate matters.

Amy graduated from Wellesley College with a double major in political science and English. She is an honors graduate of Suffolk University Law School and has been admitted to practice in Arizona, Massachusetts, New York, and the District of Columbia.

Prior to joining Fleming & Curti, Amy worked for American Public Television in Boston, and with the international trade group at White & Case, LLP, in Washington, D.C.

Amy’s husband, Tom, is an astronomer at NOIRLab and the Head of Time Domain Services, whose main project is ANTARES. Sadly, this does not involve actual time travel. Amy’s twin daughters are high school students; Finn, her Irish Red and White Setter, remains a puppy at heart.

Famous people's wills

Matthew M. Mansour


Matthew is a law clerk who recently earned his law degree from the University of Arizona James E. Rogers College of Law. His undergraduate degree is in psychology from the University of California, Santa Barbara. Matthew has had a passion for advocacy in the Tucson community since his time as a law student representative in the Workers’ Rights Clinic. He also has worked in both the Pima County Attorney’s Office and the Pima County Public Defender’s Office. He enjoys playing basketball, caring for his cat, and listening to audiobooks narrated by the authors.