Components of a Will Flashcards
what is ‘integration’ doctrine?
integration is a legal theory that recognizes that wills are multipage legal instrument
**will proponent must show that
1) the pages were PRESENT when THE WILL WAS EXECUTED - and
2) INTENDED by the testator to be part of the will
when is integration presumed?
integration is presumed when the pages are PHYSICALLY ATTACHED or there is an INTERNAL COHERENCE by provisions running from one page to the next
what can establish integration??
the testimony of witnesses or extrinsic evidence can also establish integration
what is the doctrine of ‘republication by codicil”
remember - a codicil is an instrument that amends, supplements a previously executed will.
To be valid, a codicil must be executed with the same testamentary formalities as a WILL!
under the doctrine of republication by codicil - a will is treated as having been executed on the DATE of the LAST VALIDLY EXECUTED codicil thereto
how does a valid codicil interact with other doctrines??
republication of a will by codicil can interact with other doctrines that are time sensitive
i.e. - a child born after a will’s execution but before a valid codicil to the will is created – and thus child would not be considered pretermitted because the previously executed will is treated as republished as of the date of its latest codicil
what is incorporation by reference?
incorporation by reference allows the testator to incorporate an extraneous document into their will.
The effect of incorporation by reference is that the content of the extraneous document will be created as though it was written INTO THE WILL ITSELF - even if the document was NOT witnessed OR it was informally written in handwriting
how do you incorporate a document by reference?
1) document must be IN EXISTENCE at the time the will was executed (cannot be created afterwards)
2) the will must REFER TO THE DOCUMENT as being in existence; and
3) the will must IDENTIFY AND DESCRIBE THE DOCUMENT with reasonable certainty
does it matter If this ‘extraneous document’ was created under undue influence or when testator lacked capacity???
no!!!
what about a ‘list disposing of items of tangible personal property’?
a will may refer to a written statement or lIST that disposes of items of TANGIBLE PERSONAL PROPERTY not specifically bequeathed by the will itself.
The writing may be referred to as one in existence at the time of the testator’s death.
when may this list or written statement be prepared?
the list/written statement may be prepared BEFORE OR AFTER the will’s execution, and it may be altered by the testator at ANY TIME.
Although it does not need to be witnessed,
a) the writing must be SIGNED by the testator AND
b) describe the items and beneficiaries with reasonable certainty
once a will is deemed to be valid…
once a will is deemed to be valid, you are supposed to have a legal reason to look at anything outside the 4 corners of the will.
once a will is deemed to be valid…
once a will is deemed to be valid, you are supposed to have a legal reason to look at anything outside the 4 corners of the will.
construction of wills - bequest of “personal property”
Personal property can be tangible (furniture, jewelry, art, etc.) or intangible (stocks, bonds, etc.).
Generally, a gift of “all of my personal property” includes both tangible and intangible personal property.
what if specific list of items (i.e. furniture) followed by words of general import (i.e. personal property)??
In construing a will, where a list of items with a specific meaning (for example, “furniture”) is followed by words of general import (for example, “personal property”), the general words will be construed to include only those items of the same import as the specific items listed.
construction of wills - bequest coupled with power of disposition
If a will beneficiary is given an express life estate in property coupled with an absolute power of disposition, a gift over of the remainder is valid. However, if the language is construed as giving the beneficiary a fee simple estate, an attempted gift over of the remainder is void.
