Construction

Question 1

What is the plain meaning doctrine?

Answer 1

Courts tend to give the words in the wills their plain meaning. Exception: if testator states otherwise.

Question 2

What is incorporation by reference?

Answer 2

Will refers to a document outside the will.

Allowed if
- The document is in existence at the time of the will (UPC waives this if document disposes of only personal property).
- The testator intends the document to be incorporated
AND
- The document is described in the will with sufficient certainty to permit its identification.

Question 3

What are acts of independent significance?

Answer 3

A testator can dispose of property based on some act or event that is unrelated to the execution of the will.

Question 4

What is lapse and anti-lapse statutes?

Answer 4

Common Law: a testamentary gift would lapse if an intended beneficiary did not survive the testator. Failed gifts were dumped into the residue estate.

Anti-Lapse statutes: provide an alternative disposition for lapsed gifts.  Prevents certain gifts from lapsing
Requires
- Protected relationship
- Survived by issue
If note met, common law applies. 

Class Gifts

• Common law exception to lapsed gifts rule. If a member’s gift lapses, the rest of class share the member’s gift.
• if the lapsed member is covered by anti-lapse statute, that rule controls. If not, the rest of class shared the lapsed members gift.

Question 5

What is abatement?

Answer 5

If the estate does not have sufficent funds to pay debts or mae gifts, the gifts will be abated or reduced in a specifc order.
Types
- Specific Gifts (to a person)
- General Gift (general assets)
- Demonstrative Gift (general gift from a particular source)
- Residuary

Abatement Hierarchy

• Intestate property (first to be reduced)
• Residuary
• General
• Specific

Question 6

What is ademption?

Answer 6

Ademption by Extinction

• A will makes a specific devisee of property, but the property is no longer in estate at the testator’s death.
• Traditional Rule: Devise is extinct and devisee gets noting. (Identity theory). UPC: The intent theory: look to testator’s intent at time she disposed of property.

Ademption by Satisfaction
- Applies when a testator satisfies a specific or demonstrative gift, either in whole or in party, by inter vivos transfer.

Question 7

What is the rule for ambiguities?

Answer 7

Latent
- Cannot see on face.

Patent
- Appears on face

Traditional Rule
- Parent ambiguities had to be resolved without looking at extrinsic evidence. But admissible for latent.

Modern Rule
- Allow extrinsic for both.

Question 8

What is the rule for mistakes?

Answer 8

Courts are less forgiving.