Construction

Question 1

What are the different ways to classify items in a will?

Answer 1

By the type of property:

1. Devise: a gift of real property by will
2. Bequest/legacy: gift of personal property by will.

By the classification of the gift:

1. Specific: particular piece of property
   
   1. My car to my dentist.
2. General: a gift of personal property that the testator intends to be satisfied from the general assets of his estate.
   
   1. $100 to John.
3. Demonstrative: a gift to be paid from a particular source, but if that source is insufficient, then out of the general assets.
   
   1. $100 to John from my X account, but if funds are insufficient, then the rest paid out of general funds.
4. Residuary: legacy of the estate remaining when all claims against the estate and all specific, general, and demonstrative legacies have been satisfied.
   
   1. “I give all the rest and residue of my property, wheresoever situated, whensoever acquired, and whether known or not to me, to Y.”

Question 2

How can a will incorporate another writing not executed with testamentary formalities?

Answer 2

By referencing the writing, provided that the other writing:

1. existed at the time the will was executed;
2. is intended to be incorporated; AND
3. is described in the will with sufficient certainty as to permit its identification.

N.B.: Incorporated document need not be signed.

Question 3

What is an act of independent significance?

Answer 3

Leaving something in your will for somebody who does something that they wouldn’t do just to get the thing in the will.

Example: “To the man who is married to my niece when I die.” Dude probably wouldn’t marry her just to get the thing from the will.

Question 4

What is lapse?

Answer 4

When the beneficiary dies before the testator. Used to bar the beneficiary from getting their stuff from the will, and the gift would pass through intestacy.

Question 5

What does Pennsylvania’s anti-lapse statute say?

Answer 5

1. If the gift was made to the issue of the testator OR to a brother, sister, or issue of a brother or sister of the testator AND
2. that relative predeceased the testator but left issue, THEN
3. the issue succeeds to the gift, UNLESS
4. the lapsed bequest would go to the testator’s surviving spouse or issue. (Like if there is a residual clause to the spouse.)

Question 6

How is a class gift affected by lapse?

Answer 6

1. If anti-lapse doesn’t apply and one member of the class dies, then only the surviving class members still take.
2. If anti-lapse does apply (the class members were related to the testator), then the issue of the predeceased member will also take.

N.B.: Courts like to find the existence of a class gift in order to avoid a lapsed legacy by noting the “group-mindedness” of the testator.

Question 7

How are residual clauses and future interests affected by lapse?

Answer 7

1. If the residue is left to two or more people and one dies, AND if anti-lapse does not apply, then the remaining beneficiaries take in their proportionate shares.
2. If a future interest is left to two or more people and one dies, AND if anti-lapse does not apply, then her share passes to the other future interest holders.

Question 8

What is abatement?

Answer 8

When certain gifts are sacrificed (abated) to satisfy certain debts. Basically when the person promises in their will more than they have in their estate. AKA when debts and legacies exceed the estate’s assets.

Question 9

For what debts will gifts be abated?

Answer 9

1. Funeral expenses,
2. expenses of administration, and
3. creditors’ claims

Question 10

In what order will gifts be abated?

Answer 10

In the order specified by the testator, or, if no such order is provided:

1. Property not disposed of by will;
2. bequests of property in a residuary clause;
3. general bequests of property not included in a residuary clause;
4. property disposed of by will in the form of general bequests of cash, stocks, or bonds;
5. specific bequests to distributes other than the decedent’s surviving spouse or issue;
6. specific bequests to the decedent’s issue; and
7. specific bequests to the surviving spouse.

Question 11

What is ademption?

Answer 11

Basically when a testator’s estate no longer possesses a specific bequest (it’s either missing or destroyed or extinct), then the beneficiary takes nothing UNLESS the will stated such an intent that such proceeds (like the equivalent in cash or insurance proceeds) are included in the devise.

Question 12

What qualifies as an ademption?

Answer 12

1. The gift is missing
2. The gift is destroyed
3. The gift is “extinict” (sold or given away by the testator before death)
4. There was a substantial change in nature of the subject matter of a bequest
   
   1. NOT merely a nominal or formal change!

Question 13

How can you get around ademption (sneaky)?

Answer 13

Courts will try to avoid it by

• classifying a specific bequest as a general or demonstrative,
• classifying an inter vivos distribution as a mere change in form, or
• creating other exceptions.

But, the testator’s intent does not matter.

Question 14

What obligations come with a specific devise of real property?

Answer 14

The property is subject to any security interest existing on the date of the testator’s death UNLESS the the will makes clear that the testator’s intent was to pay off the debt with the residual estate.

If the amount of lien exceeds the value of the property, then the devisee may elect to disclaim the devise of the property.

Question 15

What is ademption by satisfaction?

Answer 15

An inter vivos transfer made to a beneficiary that would have otherwise been given to the beneficiary in the will.

Question 16

How will courts interpret ambiguities and mistakes?

Answer 16

They will be reluctant to disturb the plain meaning, even if there is a mistake. But certain mistakes will be considered ambiguities.

Question 17

What are the types of ambiguities?

Answer 17

1. Patent: apparent ambiguity on the face of the will resulting from defective or obscure language.
2. Latent: ambiguity that arises from collateral facts that make the meaning of a written document uncertain.

Question 18

How do you determine whether an ambiguity exists?

Answer 18

Hear evidence from the parties and decide whether there are objective indications that language in the instrument is subject to different meanings.

Question 19

What will the court do if an ambiguity exists?

Answer 19

It will permit extrinsic evidence (including parol evidence) to explain, clarify, or resolve the ambiguity, regardless of whether it is latent or patent.

Question 20

What if there is a mistake in the will?

Answer 20

If you mistakenly execute a wrong document instead of a will, it will be unenforceable due to lack of testamentary intent.

If you mistakenly include a provision in the will, you’re stuck with it.

Question 21

Are conditions permitted in a will?

Answer 21

Yes, as long as they are express. They will be narrowly construed.

Question 22

What are the two types of conditions?

Answer 22

1. Conditions precedent: conditions or events that must happen before the gift is given.
2. Conditions subsequent: conditions or events that happen after the gift is given and may cause the beneficiary to lose the gift.

Question 23

How do we feel about conditions subsequent?

Answer 23

Don’t like ‘em because they destroy estates!

So, the court will try to find a reasonable interpretation other than a condition subsequent, but that interpretation must be given in favor of the beneficiary and when the language is ambiguous, there is a presumption in favor of vesting the interest.

Question 24

Can you opt out of the anti-lapse statute?

Answer 24

Yes, if you epress intent contrary to the statute in your will.