Construction Flashcards
Construction issues arise ..
after the death of the testator
Main source of evidence for testator’s intent
extrinsic evidence
T/F: The plain meaning of the language cannot be changed by extrinsic evidence
True
No reformation rule
Cannot reform a will to correct a mistaken term to accord with the testator’s intent
A latent mistake manifests ..
when the language on its face is clear but the ambiguity arises when being applied to the facts.
Plain meaning rule
Extrinsic evidence may be allowed to resolve certain ambiguities but the plain meaning of the words of a will cannot be disturbed.
A patent mistake manifests ..
when the ambiguity appears on the face of the will
Types of latent mistake
Equivocation and personal usuage
Equivocation
when two or more people or things fit the description exactly
Personal usage
If extrinsic evidence shows that a testator habitually used a term in a distinct manner, the evidence is admissible to show that the testator used that term in accordance with his personal usage rather than its ordinary meaning.
2-805; reformation to correct mistakes
The court is more willing to reform the terms of the governing instrument if it is proved by clear and convincing evidence what the transferor’s intention was and that term of the governing instrument were affected by a mistake of fact or law.
T/F: 2-805 may apply even if the terms are unambigous
True
Lapsed devise
A gift made by a will is subject to a condition that the devisee survives the testator , unless the testator specifies otherwise.
Types of lapse devises + description
Specific: identified gift [Blackacre to b]
General: General value [$5000 to c]
Residuary: Assets not devised in the will [The rest to d]
Class gifts: “To my sisters”
CL Lapse
Specific/general: dumps into residue
Residuary: Heirs take by intestacy [If one share lapses, no residue of a residue]
Class gifts: Surviving members still take
UPC 2-605: Antilapse
Substitutes the dead beneficiaries descendants if certain requirements are met.
Anti lapse analysis
- Whether there was contrary intent?
- if no, question 2.
- if yes, anti-lapse does not apply. - was the beneficiary 2nd line collateral or closer?
- if yes: anti-lapse applies
- if no: anti-lapse does not apply
T/F: Under 2-605, words of survivorship = contract intent
Yes
T/F: Under 2-603, WOS alone = contrary intent
False, WOS alone does NOT show contrary intent.
Must provide alternate taker.
Void devise
If the devise is dead before the will is executed or is an ineligible taker, the devise is void.
A class gift is identified by..
group labels “my siblings” or “ to A’s children”
T/F: Ademption by extinction applies only to specific gifts
True
Ademption by satisfaction is applicable ..
when the testator makes a gift inter vivos to a devisee after executing the will.
ex: In the will “ T left $1000 to K,” then T gave $500 to K during life. K will only receive $500 after T dies because presumption is the that the gift is in satisfaction of the devise made by the will.
Abatement arises when
the estate lacks sufficient assets to pay decedent’s debt as well as all devises.
