5. Interpretation and Construction

Question 1

Who Raises Interpretation and Construction Issues?

Answer 1

1. Personal representative who wants to do the right thing and thus avoid liability for improper administration
2. Beneficiaries (or heirs) who would take under various interpretations

Question 2

How are the ordinary words of a will treated?

Answer 2

Words are given their ordinary and grammatical meaning unless clear from the will that the testator intended otherwise.

Question 3

How are the technical words of a will treated?

Answer 3

Technical words are given their technical meaning unless clear from the will that the testator intended otherwise.

Question 4

What is a patent ambiguity?

Answer 4

Provision is ambiguous on its face, i.e., it fails to convey a sensible meaning.

Question 5

The court will consider the following type of extrinsic evidence to resolve a patent ambiguity:

Answer 5

1. Facts and circumstances, and

2. Statements the testator made to the drafting attorney.

Question 6

Is evidence of testator’s statements of intent to third parties admissible to resolve a patent ambiguity?

Answer 6

No

Question 7

What is a latent ambiguity?

Answer 7

Provision conveys a sensible meaning on its face but cannot be carried out without further clarification.

Question 8

The court will consider the following type of extrinsic evidence to resolve a latent ambiguity:

Answer 8

1. Facts and circumstances,
2. Evidence of the testator’s statements of intent to third parties, and
3. Statements the testator made to the drafting attorney.

Question 9

Is incorporation by reference recognized in NY?

Answer 9

Unlike most states, New York does not recognize incorporation by reference except with respect to pour over trusts.

Question 10

What is an act or fact of independent significance?

Answer 10

Something outside of a will which has a legal purpose other than disposing of property at death.

Question 11

What is the effect of an act or fact of independent significance?

Answer 11

If something is a fact of independent significance, then it need not be executed with the formalities of a will to transfer property at death.

Question 12

Examples of acts or facts of independent significance:

Answer 12

1. Specific Gifts of a General Nature (For example, “I leave the automobile that I own at my death to Bryan Mills.”)
2. Class Gift Designations (For example, ascertaining the identity of children in a gift to “all my children.”)
3. Gift to “My Spouse”
   (Who the spouse is in a gift to “my spouse.”)
4. Gifts of Contents
   (The contents of a house or safe deposit box may change in between will execution and death.)

Question 13

What is a conditional will?

Answer 13

Will which operates only if a certain event occurs or does not occur

Question 14

How do courts treat conditional wills?

Answer 14

Court will construe wills as general, not conditional, if possible.

Question 15

Joint Will

Answer 15

Single testamentary document containing the wills of two or more persons, typically a married couple.

Question 16

Reciprocal Will

Answer 16

Wills of two persons containing parallel dispositive provisions, often called sweetheart, e.g., Husband leaves all to Wife or to kids if Wife predeceases and visa versa.

Question 17

Contractual Will

Answer 17

Will executed or not revoked as the consideration for a contract

Question 18

What is needed for a valid contractual will?

Answer 18

Proof of Contract: An express statement of intent that the will’s provisions are intended to constitute a contract between the parties is required.

Question 19

How can a contractual joint will be revoked?

Answer 19

A contractual joint will can be revoked by agreement between the parties while they are both alive, but the deceased spouse’s estate cannot revoke a contractual will on behalf of the deceased spouse.

Question 20

Matt and Lisa executed a joint will with an express statement of intent. The will stated that each of their assets are to go to whomever survives the other, and upon the survivor’s death, the assets would be divided equally among their children, Chris, Jill and Karen. Matt predeceased Lisa. Lisa remarried, had more children, and executed a new will changing the beneficiaries from her children with Matt to her children with Steve (Husband 2), along with other assorted dispositions. Who inherits upon Lisa’s death?

Answer 20

The new will is admitted to probate.

The court will then impose a constructive trust on the property in favor of the intended beneficiaries, Chris, Jill, and Karen.