Chapter 6: Rules of Will Interpretation Flashcards
What happens if a beneficiary predeceases the testator?
Hint: Lapse rule; survivorship requirement
A beneficiary must survive the testator to inherit. Failure to survive causes the devise to lapse.
Survivorship = core requirement for testate and intestate estates:
- Testacy: survivorship requirement implemented by rule of lapse
- Intestacy: survivorship requirement implemented by determination of heirs from among decedent’s closest surviving relatives.
What happens to a lapsed devise?
It depends…
If the predeceased beneficiary was closely related to the testator: antilapse may apply, which redirects lapsed devise to predeceased beneficiary’s descendants.
If a specific, demonstrative, or general devisee: property passes through the
residuary estate.
If a residuary devisee: property reallocated to surviving residuary devisees or, if none, then to intestate heirs.
Common law vs. UPC approach to lapsed devises
Common Law: no residue-of-a-residue
- A lapsed residuary devise is not distributed to the surviving
residuary devisees. Instead, it passes to the testator’s heirs by
intestacy.
UPC § 2-604(b): reverses “no-residue” common law rule
“if the residue is devised to two or more persons, the share of a residuary devisee that fails for any reason passes to the other residuary devisee, or to other residuary devisees in proportion to the interest of each in the remaining part of the residue.”
What is the rule for SIMULTANEOUS deaths?
A donee’s failure to survive the donor by 5 days (120 hours) means that the donee is treated has predeceasing the donor.
*UPC § 2-702: 120-hour survivorship rule for testate estates
*UPC § 2-104: 120-hour survivorship rule for intestate estates
NOTE: Under the common law, survival doctrine required beneficiary to outlive the decedent for only a fraction of a second. This sometimes frustrated probable intent.
What are ANTILAPSE statutes?
Antilapse statutes provide an alternative disposition when a predeceased beneficiary is closely related to the testator.
- Rather than treating such gifts as lapsed, antilapse statutes send the lapsed interest to the predeceased beneficiary’s descendants.
- If antilapse applies, then the beneficiary’s failure to survive the testator does not cause the
devise to lapse.
When do ANTILAPSE statutes apply?
Antilapse applies only when the predeceased beneficiary satisfies the statutorily defined family relationship to the testator.
- Purpose: to prevent testators from unintentionally cutting off a branch of their own family.
- UPC §2-603(b): antilapse applies only to predeceased beneficiaries who are “a grandparent, a descendant of a grandparent, or a stepchild of . . . the testator.”
Can a testator OPT OUT of an antilapse applying?
Yes, because antilapse is a default rule. A popular opt out technique is to name a contingent alternative devisee to inherit if primary beneficiary predeceases.
EXAMPLE: “I devise property to X if X survives me.”
- Under the MAJORITY rule, these “bare words of survivorship” would be SUFFICIENT to opt out of antilapse.
BUT!!!
- Under the UPC (minority rule), “Words of survivorship, such as in a devise to an individual ‘if he survives me,’ or in a devise to ‘my surviving children,’ are not, in the absence of additional evidence, a sufficient indication of an intent contrary to the application of this section.”
What are CLASS GIFTS?
A devise to a group of beneficiaries where membership in group remains
subject to change until the class closes.
- Typically, the class closes upon testator’s death.
- Class gifts avoid necessity of revising will whenever a member of the class is born or dies
- Examples: devise to “my nieces and nephews” or to “my siblings.”
Only those class members who survive the testator take from a class gift.
- Example: Aisha’s will provides: “I give the sum of $100,000 to my grandchildren who survive me by 30 days.” When Aisha executed the will, she had two grandchildren. When Aisha died, she had five grandchildren. All survived her by 30 days. Each grandchild inherits $20,000 (1/5 of $100,000).
Does ANTILAPSE apply to CLASS GIFTS?
Yes, in 2 different ways.
- UPC § 2-603(b)(2): antilapse to single-generation, but not multi-generation,
class gifts. - In multi-generation class gifts (to “issue,” “descendants,” or other classes of family), antilapse protection is unnecessary because representation already performs the reallocation.
- Example: Class gift devise to testator’s “descendants” (multi-generational). If a child of the testator predeceases, then the deceased child’s descendants would take by representation.
What default rules help the court resolve property discrepancies?
- Ademption by extinction
- Ademption by satisfaction
- Abatement
- Accession
These doctrines rely on the classification of devises to identify and resolve property discrepancies.
What are the 4 classifications of devises?
Restatement (Third) of Property: Wills & Other Donative Transfers § 5.1.
Classification of Devises
(1) A specific devise is a testamentary disposition of a specifically identified asset.
(2) A general devise is a testamentary disposition, usually of a specified amount of money or quantity of property, that is payable from the general assets of the estate.
(3) A demonstrative devise is a testamentary disposition, usually of a specified amount of money or quantity of property, that is primarily payable from a designated source, but is secondarily payable from the general assets of the estate to the extent
that the primary source is insufficient.
(4) A residuary devise is a testamentary disposition of property of the testator’s net probate estate not disposed by a specific, general, or demonstrative devise.
When does ADEMPTION BY EXTINCTION apply?
When property described in a specific devise is not found in the testator’s estate at death.
EXAMPLE:
2015: Testator buys a beach house.
2016: Executes will devising “my beach house to Fanny.”
2017: Sells beach house, with plans to buy larger one.
2018: Testator dies without updating will or buying new beach house
- What Fanny inherits depends on the theory of ademption the jurisdiction follows.
NOTE: Ademption by extinction DOES NOT APPLY to INTESTATE estates.
What are the 2 theories of ADEMPTION by EXTINCTION?
Majority Rule: “Identity” Theory
* Common law: a specific devise adeems (or fails) if property
specifically named in the devise cannot be identified in the estate.
* When a specific devise is extinguished under this doctrine, the beneficiary
takes nothing under the adeemed gift.
Minority Rule: “Intent” Theory
* UPC model: a specific devisee is entitled to a substitute pecuniary
devise if the devised property cannot be identified in the estate and ademption would be inconsistent with the testator’s manifested plan of distribution.
What if a specific devise has changed forms?
Restatement (Third) of Property: Wills and Other Donative Transfers § 5.2 comment d:
Even though a specifically devised asset is not in the testator’s estate in its original form, the specific devise DOES NOT FAIL if the asset is in the testator’s estate in a changed form. The change-in-form principle applies if the change in form is INSUBSTANTIAL.
What happens when a specifically devised property is sold “by a
conservator or by an agent acting within the authority of a durable power of
attorney for an incapacitated principal?”
Under UPC §2-606(b), when specifically devised property is sold “by a
conservator or by an agent acting within the authority of a durable power of
attorney for an incapacitated principal,” the testator’s intent is not a factor.
- Rather, “the specific devisee has the right to a general pecuniary devise
equal to the net sale price, the amount of the unpaid loan, the
condemnation award, the insurance proceeds, or the recovery.”
EXAMPLE: If Blackacre was sold by Jennifer’s conservator for $500,000,
Sam would be entitled to a general pecuniary devise of $500,000.
