Construction Flashcards
IV.(A) Classification:
Establishes the order of distribution and abatement
- Specific or Legacy
Can be distinguished with reasonable accuracy from other property that is part of T’s estate; shares of stock of a named corporation are usually specific unless T intended otherwise
- General
personal property that T intends to be satisfied from the general assets of the estate
- Demonstrative
T intends that a gift be paid from a particular source, but if that source is insufficient, T directs that the legacy be satisfied out of the general assets of the estate
- Residuary
what remains when all claims against the estate and all specific, general, and demonstrative legacies have been satisfied
IV.(B) Incorporation By Reference
a writing not executed with testamentary formalities may be incorporated by reference if it existed at the time the will was executed( waived in CA if document disposes only of T’s personal property described with reasonable certainty), is intended to be incorporated, and is described in the will with sufficient certainty.
IV.(C) Acts of Independent Significance
Rule: A will can provide for the designation of a beneficiary or the amount of a disposition by reference to some unattested act or event occurring before or after the execution of the will or T’s death, if the act or event has some significance apart from the will.
> Independent Legal Significance: it is unlikely that T or the other person would perform the act or event solely for testamentary reasons.
> Pour over will: includes a clause wherein some or all of the decedent’s probate property is given to the trustee of the decedent’s inter vivos trust
IV.(D) Lapse
Rule: If a beneficiary dies before T, the gift fails and goes to the residue and passes through intestacy
> Anti-Lapse statute: If the gift was made to a blood relation of T or T’s spouse, and the relation or spouse predeceased T but left issue, the issue take the gift
> Class gift rule: Only surviving members of the class will take, but if anti-lapse applies because the class member are related to T, then the issue of the predeceased member will also take( CA anti-lapse statute will not apply to save a gift to a class member who died before the will was executed if the testator knew of this fact)
IV.(F) Ademption
Ademption By Extinction:
Rule: If the subject matter of a specific bequest is missing, destroyed, or there is a substantial change, then the beneficiary takes nothing.
CA: Cts will examine T’s intent at the time he disposed of the subject matter of the bequest i.e. if a specific bequest is sold by T’s guardian during T’s incompetence, then the bequest is not adeemed)
Beneficiary Entitlement: whatever is left of the specifically devised property or the balance of the purchase price owing from the purchaser of the property
Ademption By Satisfaction
Rule: A general, specific, or demonstrative devise may be satisfied in whole or in part by an intervivos transfer of the devisee after the execution of the will, if it was T’s intent to satisfy the devise by transfer
> T’s intent to adeem: must exists before the legacy or bequest is rendered inoperative, and in CA must be expressed in a contemporaneous writing that shows the intent to charge the property given as advancement(no signature required in CA)
> No Presumption in CA: to find ademption by satisfaction: instrument provides for deduction of the lifetime gift from the at death transfer, T’s intent to adeem is expressed in a contemporaneous writing, transferee acknowledges in writing that the gift is in satisfaction of at-death transfer, or property given is the same that is the subject of a specific gift to that person as
IV.(3) Securities
> A bequest of a certain # of shares owned by T at the time the will was executed includes any additional shares of that security or of another security acquired by reason of a stock split, stock dividend, reinvestment, or merger
> CA: a bequest of a certain # of shares not owned by T at the time the will was executed is deemed not to include any additional shares.
Ambiguities and Mistakes
> Plain Meaning Rule: A ct will interpret a will using only the four corners of the document, extrinsic evidence is prohibited
> Exceptions: extrinsic evidence is admissible in the following circumstances: to resolve any ambiguities, equivocations, and personal usage
- Unambiguous will with mistake in expression of T’s intent: an unambiguous will may be reformed if clear and convincing evidence establishes that the will contains a mistake in the expression of T’s intent at the time the will was drafted and establishes T’s specific intent at that time.
Restraints on Marriage
Absolute restrictions are prohibited, partial restraints are valid if they impose reasonable restrictions on marriage or attempt to prevent ill-advised marriages
Order of Abatement
Where an estate’s value is insufficient to pay its obligations and provide for disposition of property under a will, it must reduce (abate) gifts in order to pay the obligations and satisfy some bequests and devises Requirement to pay obligations — estate must always pay off obligations before distributing assets (i.e., satisfy debts, expenses, taxes, etc.) • Abatement occurs when, after doing so, the estate lacks sufficient funds to carry out disposition of property under terms of the will Order of abatement — testator’s will may set out an order of abatement • Absent provisions in the will, most state statutes provide for an order of abatement setting a priority as to which categories of property in the estate will be sold off first • Order — most states abate estate property in the following order: 1. Property not disposed of by will (i.e., passing by intestacy) 2. Residuary estate (i.e., the portion that would remain after all specific gifts and bequests have been made) 3. General devises — abate pro rata 4. Specific devises and bequests
