Construction Flashcards
Construction - Definition
Construction requires court to determine terms of the will and how to ditribute the estate
Types of Gifts
- Specific
- General
- Demonstrative
- Residuary
Specific Gifts
wills
Gift of roperty that can be distinguished with reasonable accuray from other party in the estate
My red truck to my dentist
General Gifts
wills
Gift of personal property (such as money) that testator intends to be satisfied form general assets of the estate
$7,000 to Lizzy
Demonstrative Gifts
wills
Gift that is intended to be paid from specific source, if source is insuficient then from general assets
$5,000 to Clara from Account Z, but it funds are not sufficient, then the rest paid out of general funds
Residuary
wills
Gift of the estate remaining when all claims against estate and all specific, general, and demonstrative gifts have been satisified
Incorporation by Reference
- Existed at time the will was executed
- Intended to be incorporated
- Is described in the will with sufficient certainty for identification
**UPC waives existence requirement if document only disposes of tangible personal property
Acts of Independent Significance
T may provide for B or amount by reference to some unattested act or event occurring before or after the execution
Independent means they would not do the thing just to satisfy the terms
A will might leave a certain gift to “the man who is my niece’s spouse at the time of my death.” The law does not presume that the niece would marry or divorce merely to complete the terms of the will.
Lapse: Common-Law
wills
If B died before T, gift failed and went to residue or altnerative disposition. (Ie passed though intestacy)
Anti-Lapse Statute
Wills
If gift was made to relative, then relative’s issue recieves the gift
Anit-Lapse Statutes - Requirements
Most states: sufficiently related (ie child, grandchild
Survivorship Clauses
Wills
Will may include a provision devising property to a person on the condition that they survive someone else
- Majority Approach - if will has survivorship requirement and B predeceases T, then anti-lapse does not apply
- UPC Approach - Even if survivorship clause, courts may still apply anti-lapse and give gift to beneficiary’s issue unless it is clear that T did not want anti-lapse to apply
Abatement Order
Gifts are abated in the following order:
1. Instestate property
2. Residuary bequests
3. General bequests
4. Specific bequests
Abatement Definition
Gifts are abated (ie reduced) when assets are insufficient to pay all debts and legacies
Ademption
When the thing T bequests no longer exists
Ademption by Estinction - Traditional Approach
“Identity Theory”
If it no longer exists, it is missing, a substantial change occurs, or detroyed, beneficiary takes nothing
Applies only to specific gifts – no general or demonstrative
Ademption Types
- Ademption by Extinction
- Ademption by Satisfaction
Ademption by Extinction – UPC Approach
Modern Approach
Permits beneficiary of specific extinct gift to inherant its replacement or if testator is owed money relating to extintion, the outstanding balance
If that does not apply, then B gets money equivalent if ademption is inconsistent with Ts (1) intent or (2) plan of distribution
Ademption by Satisfaction
Ademption - Stocks
Bequest of stock owned at time of execution includes any additioanly shared of that stock or another stick as long as was intiated by corporate entity
