Components of a Will Flashcards
What is an integration?
Physical attachment, internal coherence of pages, or an orderly dispositional plan raise a presumption that the pages were present and intended to part of the will. It can also be proven by testimony or other extrinsic evidence.
What is a codicil?
Modifies a previously executed will and must be executed with the same formalities.
What is the doctrine of republication by codicil?
A will is treated as executed on the date of the last codicil.
Can a codicil validate a prior invalid will?
Yes, a validly executed codicil is generally viewed as impliedly incorporating a defective will by reference and validates the defective will so long as the defective will was intended to be a will. (This isn’t technically a republication.)
When may a document be incorporated by reference into a will?
If (1) it is in existence at the time of the execution, (2) it is sufficiently described in the will, and (3) the will manifests an intent to incorporate. The language of the will must refer to the extrinsic document and reasonably identify. The condiment must correspond the will’s description. The UPC allows a testator to refer to a list of specific distributions of tangible personal property that is then written or altered after the will, as an exception to the time of execution requirement.
May a will dispose of property by reference to non testamentary acts and events which are in the future and unattested? (E.g., “each person in my employ at the time of my death”)
Yes, if they have significance apart from their effect on dispositions made by the will. A gift to employees at the time of testator’s death is okay because the testator would not make employment decisions solely for the purpose of disposing of property.
Can a testator make a gift to a trustee of an inter vivos trust?
Yes, even though the trust may itself be amended or revoked after will execution
What is a power of appointment?
An authority granted to a person enabling them (the donee) to designate, within the prescribed limits of their power, the persons who shall take property and the manner in which they shall take it.
What is the difference between the special and general powers of appointment?
A general power of appointment is a power exercisable in favor of the donee themself, their estate, their creditors or estate creditors. A special power of appointment is exercisable in favor of a limited class which does not include the donee, their estate or creditors.
What is the difference between presently exercisable and testamentary power?
Presently exercisable: can be exercised by the donee during her lifetime
Testamentary: exercisable only by the donee’s will
Is appointive property subject to the elective share statute?
No
Can general creditors reach appointive assets?
The donee does not own the appointive property, so if she does not exercise any general appointive power, the creditors cannot reach it. If she exercises the power (even to appoint another person), her creditors can reach it. (If the donee and donor are one and the same, the creditors can reach the property regardless of exercise of general powers.)
Is a blanket exercise of power of appointment permissible?
Yes, a person holding testamentary power may exercise a will devising “any property over which I may have a power of appointment.” This will be given effect unless the creator of the power required the exercise to be by specific reference to the power.
Can a power of appointment be exercised by implication?
A court will find that a power of appointment was exercised by implication when the donee purports to dispose of property subject to the power as if it were their own. This occurs unless the donor called for the power’s exercise by specific reference to the power.
What does the power of appointment include?
Absent a contrary provision in the instrument, the donee may appoint the property outright or in trusts( which can include spendthrift provisions), create life estates and future interests, impose conditions and limitations on interests, and create additional powers of appointment.
