Changing a Will

Question 1

What is a lapse?

Answer 1

When a gift lapses, it fails. This occurs when a beneficiary is dead and therefore cannot take the gift.

Question 2

What is an anti-lapse statute?

Answer 2

Most states have statutes that prevent lapsing. These statutes take effect when the beneficiary

(i) was in a specified degree of relationship to the testator, and
(ii) left descendants who survived the testator.

The descendants of the beneficiary take by substitution under the anti-lapse statute.

Question 3

What is the scope of anti-lapse statutes?

Answer 3

It varies. Some only reach the descendants of the decedent, others touch any descendant of the beneficiary.

Also, anti-lapse statutes do not apply if they are contrary to a will’s provisions.

Question 4

What happens when there is a lapsed residuary interest under common law?

Answer 4

It “falls out of the will” and passes by intestacy.

Question 5

What happens when there is a lapsed residuary interest in a majority of jurisdictions?

Answer 5

The residuary beneficiaries who survive the testator take the deceased beneficiary’s share of the residuary estate.

But, if there is an anti-lapse statute the residuary interest goes to the decedent beneficiaries heirs.

Question 6

What happens when a will devises a class gift and a class member predeceases the testator?

Answer 6

That part of the gift is reabsorbed into the class.

UNLESS the anti-lapse statute applies.

Question 7

What is the effect of a beneficiary being dead when the will was executed?

Answer 7

That gift is void.

Question 8

What is ademption?

Answer 8

Ademption occurs when a gift is not in the testator’s estate at his death.

Question 9

What kinds of gifts does ademption apply to?

Answer 9

Ademption applies only to specific devises and bequests.

Ademption does not apply to sale proceeds.

Question 10

What is partial ademption?

Answer 10

Partial ademption is when a beneficiary is devised property but only part of the property remains in the testator’s estate at his death.

Question 11

What is the effect of ademption?

Answer 11

The adeemed gift fails.

Question 12

When can documents be incorporated by reference?

Answer 12

(i) the document must be in existence at the time the will was executed, (ii) the language of the will must sufficiently describe the writing to permit its identification, and (iii) the will must manifest an intention to incorporate the document.

Question 13

What is the identity theory of ademption?

Answer 13

It is an objective test of ademption. It does not consider the testator’s intent.

Question 14

What are the alternative forms of ademption to the title theory?

Answer 14

1. Some courts allow the beneficiary to take substitute property if he can show that the testator intended the beneficiary to take that property.
2. Under the UPC, a specific devisee has the right to real and tangible property that was acquired by the testator as a replacement for the devised property.

Question 15

How are stock splits and dividends treated?

Answer 15

1. At common law, stock splits are included in a specific bequest, while stock dividends are not.
2. Under the UPC, both splits and dividends are included in the specific bequest.

Question 16

What is the general rule for increases in Testator’s estate before death but after the formation of a valid will?

Answer 16

1. Income on property goes into the general estate

2. Improvements to real property go to specific devisees.

Question 17

How is stock treated for the purposes of ademption?

Answer 17

The case turns on whether a gift of stock is made as “ XYZ stock” or as “my XYZ stock.”

With “my stock” the stock is a specific bequest and ademption applies.

Question 18

What are the common instances in which the identity theory of ademption has been softened by statute in most states?

Answer 18

1. Where casualty insurance proceeds for the loss of the specifically bequeathed property are paid after the testator’s death, the beneficiary is entitled to the proceeds.
2. The beneficiary is entitled to the condemnation award in cases where the specifically devised property is taken by eminent domain before the testator’s death, but the award is paid after the testator’s death
3. Where specifically devised property is subject to an executory contract at the testator’s death, the beneficiary is entitled to all of the testator’s rights under the contract, including the right to the remaining payments and any security interest retained by the testator
4. Where a will makes a specific bequest of securities in one entity, the beneficiary is entitled to securities in another entity owned by the testator as a result of merger, consolidation, reorganization, or other similar action initiated by the entity
5. If a testator becomes incompetent and the specifically devised property is sold by a guardian or a condemnation award or insurance proceeds are paid to the guardian for the property, the devisee is entitled to a general pecuniary legacy equal to the amount of the proceeds.