Chapter 7: Construction and Interpretation of Wills Flashcards
Specific devise
A gift of a specific piece of property that is distinguishable.
General devise
A gift of personal property that can be satisifed from the general estate.
Demonstrative devise
Amount payable from a specific source
Residuary devise
what remains after all specific, general and demonstrative devises have been satisfied.
When may a document be incorporated into the will?
A will may incorporate another writing that was not executed w/ all the formalities of a will if the other writing: (1) existed at the time the will was executed; (2) is intended to be incorporated into the will and (3) is described in the will with sufficient certainty to permit its identification.
Acts of Independent Significance
A will may designate a beneficiary or make a disposition by reference to an act occurring before or after the execution of the will if the act has significance independent of the will.
Anti-lapse statute
When a beneficiary is not alive at the time of the death of a T, the gift fails/lapses and becomes part of the residuary.
NC anti-lapse statute provides an exception if the B who predeceases is related to T at the level of grandparent or descendant of grandparent. If so, the surviving issue of the deceased B takes in her place.
Class gift
When a gift is to a class, only the survivng members take. Class gifts work in conjunction with the anti-lapse statute.
The anti-lapse rule applies to residuary beneficiaries. The other residuary beneficiaries take in the deceased beneficiaries place unless the issue could take under the anitlapse statute (related at grandparent level and issue of B)
Abatement
Occurs when T gives away more than he owned
Order of abatement: (1) intestate property; (2) residuary devises; (3) general devises; (4) specific devises.
Ademption
When T does not own specifically devised property at her death, the gift is considered adeemed, unless T was incompetent or the property was stolen.
Ademption by extinction: property no longer exists
Ademption by satisfaction: property given to B during T’s life.
Exoneration of liens
The default rule is that specifically devised property is given to B w/ liens still on property.
The will may order the lien paid.
Ambiguities and Mistakes
Generally, NC adheres to the plain meaning of the will and generally does not allow extrinsic evidence to interpret the will.
NC allows the introduction of extrinsic evidence if there is a latent ambiguity.
NC generally does not allow extrinsic evidence for a patent ambiguity unless the ambiguity relates to T’s intent.
