Presumption Against Intestacy Rebutted

In Hammer v. Hammer, 633 S.E.2d 878 (N.C. App. 2006), after Harold Leach Hammer passed away, his wife Wanda admitted his will to probate. The decedent’s son, Gary Wayne Hammer, subsequently filed a complaint saying that he was entitled to everything not given to Wanda in Item Two of the will. The court read the provisions of the will as follows:
   

[T]he testator anticipated various contingencies in the disposition of his estate. If his wife survives him, testator devises in Item Two certain real and personal property to her. In the case of simultaneous death, Item Three devises specified property to testator’s step-daughter and bestows the residuary on plaintiff. If wife predeceases testator, Item Four devises the entire estate to plaintiff. While Item Two does not specify how the residuary of the estate is to be disposed, plaintiff argues the provisions of Items Three and Four establish a general plan that he should take everything.
   

The court read the residuary clauses in Items Three and Four as having conditions precedent, both of which involved Wanda passing away either before the deceased  or simultaneously with him. “The lack of a similar residuary clause in Item Two, the provision which controls in the present case [where the wife survived the testator], is a manifest and unequivocal indication of testator’s intent not to pass the residuary of his estate solely to plaintiff.”

Thus, there was no latent ambiguity and extrinsic evidence was inadmissible; the presumption against partial intestacy was overcome.