Components of a Will Flashcards
Overview: Components of a Will
- Integration of Wills: What makes up the will itself?
- Republication by Codicil: What documents come in to determine the estate plan.
- Incorporation by Reference: Additional documents without testamentary formalities.
- Acts of Independent Significance
How to Interpret the Words of an Instrument
An interpretation that will give every expression some
effect, rather than one that will render any of the
expressions inoperative.
Preference is to be given to an interpretation of an instrument that will prevent intestacy or failure of a transfer
External Integration of a Will
What is the total collection of documents available that, when taken together, comprise the testator’s will?
External Integration refers to the process of establishing the testator’s will by piecing together all of the testator’s wills, codicils, and other testamentary instruments.
Internal Integration of a Will
The process of making certain the testator’s will contains no fewer and no more pages than it did when the testator executed it (look at the will itself to make sure it contains the exact number of pages as when the testator executed it.)
How to Prevent Integration Issues in Attested Wills
- Have testator initial each page.
- Make sure all signatures and handwriting are in blue ink.
- Fasten all pages together with staples or rivets.
- Use the same color, weight and size paper.
- Use consistent typeface on all documents
How to Prevent Integration Issues in Holographic Wills
It is difficult to avoid integration issues since writings maybe different in terms of paper, ink, etc
Elements of an Incorporation by Reference
- The document to be incorporated must have existed at the time the will was executed.
- The document must be sufficiently described in the will to clearly identify it.
- T must have intent to incorporate the writing.
a) Look at the dates of both the will and outside doc.
b) Was the doc located where T said it would be?
c) What proof exists that T intended to incorporate this doc
Example: I leave all artwork that was appraised on 1/1/90 by Lloyds of London and is kept in a file titled “Artwork” to my son; the rest of my estate to Salvation Army.
What if T changes the document to be incorporated after executing their will?
The terms of an incorporated document are frozen at the time the testator executes the will, meaning any changes made to the document after the testator executes the will are not controlling.
Example: T executes a will in 1998 which states: “I leave all coins listed in notebook titled ‘coins for daughter,’ which I now keep in my safe deposit box, to my daughter.” As of 1998 when the will was executed, whatever that list in the notebook contained goes to the daughter
Incorporating a Document disposing of Tangible Personal Property
A writing referred to in a will that directs the disposition of tangible personal property will be incorporated by reference IF all of the following conditions are satisfied:
(1) An unrevoked will refers to the writing.
(2) The writing is dated, and either in the handwriting of the testator, or signed by the testator.
(3) The writing describes the items and the recipients of
the property with reasonable certainty.
(4) The total value of all property disposed of by the writing shall not exceed $25,000. An individual item can’t exceed $5,000 (otherwise will be distributed as residue)
What is “tangible personal property”
Includes articles of personal or household use or ornament (Furniture; furnishings; automobiles; boats; jewelry)
Does NOT include:
- Real property; motorhome; currency
- Intangible property (evidences of indebtedness, bank accounts, monetary deposits, docs of title)
Republication by Codicil
A valid codicil to a will has the legal effect of republishing the will and updating the date of the will to the date the codicil was executed (the will is treated as if re-executed as of the date of the codicil).
The codicil does not have to mention the underlying will for the republication to be valid
HYPO: If the underlying will is never valid to begin with, can the date be republished by a valid codicil?
NO
HYPO: Can the court treat a codicil as a valid will and incorporate by reference a prior, invalid will, if it existed when the codicil was executed?
YES, if:
(1) The will existed when the “codicil” was executed;
(2) The will is sufficiently identified in the “codicil”; and
(3) testator intended to incorporate it by reference.
- Then both documents would be submitted to probate to determine distribution of T’s estate
Acts of Independent Significance Rule
Common Law “Plain Meaning Rule”: The court interprets a will by its four corners, and what the testator knew when executing the will
CA Rule: Permits the will to dispose of property by referring to acts and events that have significance apart from their effect upon dispositions made.
- The acts or events can occur before or after the execution of the will, or before or after the testator’s death.
Examples of Acts of Independent Significance
To identify a beneficiary
- Testator’s will says “I bequeath $1,000 to each person who is employed in my retail store at my death.” The beneficiaries can be determined by subsequent acts of employment in the testator’s discretion, but those acts obviously have significance independent of their testamentary significance. Therefore, they are valid.
To identify a gift
- Testator’s will says: “I give the residence I own at my death, to my son, John.” The act of owning home during lifetime has significance other than its testamentary significance b/c provides shelter & investment. Therefore, the gift is valid.
