Comprising and Construing the Will: Interpretation Flashcards
General Rule of Construction
Wills are always to be construed in accordance with the discernible intent (hence the term “will” of the testator).
Integration (What Comprises a Will?)
Any pages that suffice under integration. 2 req: 1) present at execution and 2) intent for pages to be a part of the will.
Four Doctrines Under Which Either Pages or Acts that Would Fail “Integration” May Nevertheless Become Part of the Will
1) Facts of independent significance
2) Inter vivos trusts (UTATA)
3) Incorporation by reference
4) Personal property list
Incorporation by Reference
Says that documents will become a part of will if:
- the writing was in existence at the time of execution of the will
- the will manifested intent to incorporate; and
- the will described the writing sufficiently to permit its identification
Facts of Independent Significance
A will may provide for the designation of a beneficiary or the amount of a disposition by reference to some future unattested act occurring after the execution of the will, so long as that act or fact holds some significance apart an attempt to change the will. A common example is the residuary clause (everything done in life will affect that clause).
Personal Property List
The testator has the ability to make a writing that lists PP the decedent would like to transfer to certain individuals if the writing described the beneficiaries and the property to be given away with reasonable certainty.
Personal Property List Req.
- The writing will dispose of the property even if not properly attested, as long as it is signed
- This writing can be created even after the will is in existence, as opposed to incorporation by reference (must exist before)
- Real estate or RP cannot pass in this way (furthermore, $ is not PP for this purpose)
Inter Vivos Trusts
Under the Uniform Testamentary Additions to Trust Act (UTATA), if a testator makes a gift to a trust in existence at the time of the decedent’s death, that gift will be a valid disposition, even if the trust is created or altered/amended after the will was executed.
Selected Statutory Rules of Interpretation: Speaking at Death
A will speaks at death, so the situation in existence at the time of death will carry the day. E.g. “the rest to my children” will cover children born after the time of execution as well as those already born before. After acquired property will not be covered by the will if the will does not speak to it.
Spouse’s Elective Share
- Statutory right of a surviving spouse to decline to take under the will or pursuant to the intestacy statute, and instead choose to take an elective-share (50% of the value of the marital-property portion of the augmented estate). The right to elect survives even where the testator specifically and purposely left the spouse out of the will.
- Therefore, taking an elective share is an alternative to challenging a will.
Procedure for Election of a Share
The surviving spouse must make an election within the later of:
- the nine months after the date of the decedent’s death; or
- six months after the probate of the decedent’s will
Determining the Marital Property Portion of the Augmented Estate
Under the UPC, there is a sliding scale approach, the longer the marriage = the higher the marital property portion.
Supplemental Elective Share
A special feature for small estates that is designed to bring the surviving spouse’s assets up to at least $75,000, or as close to that figure as the value of the assets permits.
Waiver of Right of Election
The right of election of a surviving spouse may be waived, wholly or partially, before or after marriage, by a written K, agreement, or waiver signed by the surviving spouse (e.g. prenup).
Scrutinizing Waivers of Election
Courts heavily scrutinize these sorts of waivers and might hold them to be ineffective if inequitable or based upon incomplete financial disclosure.
Property that is Excluded from Right to Election
The decedent’s sales that were supported by adequate and full consideration are excluded from the augmented estate, even if the purchaser is a relative.
Spouse’s Right to Intestate Share
If a testator’s surviving spouse married the testator after the subject will was executed, the surviving spouse is entitled to receive an intestate share (which is often greater than an elective share) unless:
- the will indicates that the spouse was not intended to take anything under the will; or
- if inter vivos gifts are made to the spouse in satisfaction of the spouse’s share.
Omitted Heirs: Children Living at Time of Execution of Will
Under the UPC, a testator can disinherit a child intentionally. There is no forced or elective share for children in the same way that there is for a spouse.
What About Children Born After Execution of the Will?
If a testator fails to provide for a child born or adopted after making the will, the UPC protects such child from unintentional disinheritance and instead entitles the child to some share, unless it appears from the will that the failure was intentional.
Rights of After-Born Children: When the Testator Had No Living Child When the Will Was Executed
The after-born or adopted child receives an intestate share except:
- when the will devised most or all of the estate to the omitted child’s other parent
- the face of the will reflects that testator intended omission.
Rights of After-Born Children: When a Testator Does Have Children
- If a testator had one or more children living at will’s execution and the will made a devise to one or more of them, the omitted after-born or adopted child is entitled to share in what they received as if the child had been given an equal share of that portion of the estate.
- If a testator had living children at the time of the will’s execution but they received nothing under the will, the after-born or adopted child will continue to “share” by also getting nothing.
Do After-Born Non-Marital Children Have Rights?
Non-marital after-born children are entitled to take the same as marital after-born children if:
- mother & father marry; or
- father holds child out as his; or
- judicial determination of paternity; or
- there is other clear and convincing evidence of paternity
After-Born Children Rights: Codicils
Remember if a valid codicil is executed after the birth of an originally after-born child, the entire will is republished as of that date, the child is treated as if in existence at execution (no longer an after-born child), and will not be entitled to an intestate share.
Slayer Act
Any person who participates, either as a principal, co-conspirator, or an accessory before the fact, in the willful and unlawful killing of the decedent may not acquire any property or receive any benefit as a result of the decedent’s death. Does not apply if the killing was reckless, accidental, or negligent.
