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Trusts + Estates > Construction and Interpretation of Probate Documents > Flashcards

Construction and Interpretation of Probate Documents Flashcards

1
Q

Mistake in the execution

A

Document that is mistakenly executed or part that is mistakenly included in the executed document

Document/part of one that was mistakenly omitted

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2
Q

Knupp v. D.C.

A

No legatee was named in the abovementioned paragraph…. cannot fill in the blanks

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3
Q

Effect of mistake in the execution?

A

Traditional: words no executed in compliance with the Wills Act will be given effect or admitted to probate, no words allowed to include

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4
Q

Mistake in the inducement

A

Mistake of fact outside the instrument that effect the formulation of the intent of the testator

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5
Q

Probate takes on a mistake in the inducement

A

The properly executed will is admitted to probate

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6
Q

Construction on a mistake in the inducement

A

Traditional: no reformation, no litigation

UPC 2-805: NOT WIDELY USED, but can use C+C evidence to conform to the T’s intention

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7
Q

Benefit + Cost of UPC 2-805

A

Benefit: intended take the residue as wanted

Cost: gifts to unintended persons, more litigation

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8
Q

Plain meaning rule

A

If language accurately describes property or a likely beneficiary of the testator, the court will not admit
extrinsic evidence that something else or someone else was actually intended by the testator

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9
Q

No reformation rule

A

Subjective intent of D will not be a basis of reforming the instrument

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10
Q

Estate of Hyman

A

Mistake in the will file that there has to be a plain meaning on what the will says, no extrinsic evidence allowed

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11
Q

Breckner v. Prestwood

A

Clear conflict in the will, evidence of where things should go, Court applies enjusten generis

No reformation

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12
Q

Patent ambiguity

A

an uncertainty which appears on the face of the [instrument]

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13
Q

Latent ambiguity

A

one which is not apparent on the face of the [instrument] but is disclosed by some fact collateral to it

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14
Q

What evidence can be used to prove a patent defect?

A

Circumstances of the testator’s life, friendship, etc.

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15
Q

What evidence can be used to prove a latent defect?

A

Circumstances of the testator’s life, friendship, etc.

Intention of T

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16
Q

Modern trend toward ambiguities

A

Extrinsic evidence allowed to clear them both up

UPC 2-601

Reject plain meaning

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17
Q

Smith v. Flowers

A

Latent ambiguity resolved to get information about the will based on T’s intent

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18
Q

Devises

A

Assets given

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19
Q

Specific devise

A

“I give X my ring”

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20
Q

General devise

A

“I give X $100”

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21
Q

Demonstrative devise

A

I give $100 from my sale of my stock to X (other sources make up the rest of the gift)

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22
Q

Residuary devise

A

X the residue of my estate

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23
Q

Class gift

A

Class minded gift “to my children” a group is the main focus

24
Q

Devisee

A

who gets the gift

25
Q

Estate of Rhodes

A

No issue of lapse because there is an alternative listed

26
Q

Lapse

A

When specific and general devises become part of the residue and pass with it

NOT IN LAPSE IF THERE IS AN ALTERNATIVE to take instead of the deceased devisee

27
Q

Void gift

A

A dog, God, or is a devisee who is dead at the time of will being executed is a void gift

Devise goes to intestate succession

28
Q

Failed gift

A

Devisees cannot take - falls into the residue

29
Q

Anti-lapse statute

A

Provide substitute taker in some situation, but not close to all

30
Q

Lapse is a gift to:

A

Common law: devisee alive at execution of will but dead before testator

UPC: devisee alive at execution of will but dead before the 120 hours of after the death of testator

31
Q

Lapse statute requirement

A

1) substitute taker
2) relationship

32
Q

Lapse Statutes create ___________ rules

A

default: specify the person for the gift to automatically be made to

33
Q

McGowan v. Bogle

A

“those who survive me” works around the substitution opt out of the lapse statute

34
Q

Blevins

A

“Residue and remainder of my estate including devises that lapse to my nephews” NOT enough to work around lapse

35
Q

Language to survive lapse statutes

A

“if he survives me” or to “my surviving children” is enough

Majority: YES

Upc 2-603(b)(3): No

36
Q

Lapse of class gifts

A

Allowed so that one dead member of the class can be replaced by a substitute taker (typically a descendant of the dead person)

37
Q

Estate of Donovan

A

Wanted the rights to the sale of the stocks to go to a number of people

Court: NO! will talks about intangibles, cannot work through because the devisee was adeemed by extinction

38
Q

Ademption of a Gift

A

Property gifted in a will is not in the estate’s possession at the time of the testator’s death

39
Q

UPC 2-606 (Ademption of Specific Devisee)

A

Specific devices CANNOT be adeemed by extinction

40
Q

Strunk v. Lawson

A

Stock amount changed from execution of will to the death, trial court reformed the bank and the number of shares

Stock split must occur AFTER the execution of the will

41
Q

Stock increase after execution of will common law

A

Specific devises: desivse increases, number of shraes grow

General devises: devise stays the same, number of shares are fixed

42
Q

Stock increase after execution of will UPC

A

If the testator had enough shares at both execution and at death, the number of shares grows

Strunk: NO, UPC: opposite

43
Q

Ademption by satisfaction

A

occurs when a party gives someone a gift initially intended to be included in their will while that party is still alive

44
Q

Gifts allowed by adeeming of satisfaction

A

UPC: ALL
Some states: specific gifts cannot be adeemed

45
Q

Special Satisfaction Rule (Parent-Child)

A

When a parent executes a will with a general provision to a kid, then makes a gift to that kid, the lifetime gift is presumed to be a satisfaction of the bequest

46
Q

Exoneration of specific devises: common law

A

The estate pays the mortgage on the property. And a court could say that a
pay-just-debts clause mandates the same.

47
Q

Exoneration of specific devises: UPC 2-607

A

Reverses common law

“A specific devise passes subject to
any mortgage interest existing at the date of death, without right of exoneration, regardless of a general
directive in the will to pay debts.”

48
Q

Abatement order when transfers cannot be made:

A

1) property not disposed of by the will

2) residuary devises

3) general devises

4) specific devises

49
Q

Omitted Spouse: UPC 2-301

A

Must provide a share of the will UNLESS:

the will talks about notwithstanding another marriage

T provided for the spouse outside of the will and is inferred from evidence

SOME STATES: the surviving spouse gets a pretermitted share unless the will indicates otherwise

50
Q

Omitted Children: UPC 2-302

A

Only applies if the testator became the parent of the child AFTER the will was executed

51
Q

Omitted child DOES NOT TAKE if:

A

Omission was intentional or was provided for outside of the will

52
Q

Omitted child CAN take when:

A

1) T had no other kids alive at the time of the will

2) Will gave less than substantially all to a surviving aprent of a child (intestate share)

2) T had other kids alive at the wills execution (gets a kid’s portion)

53
Q

Espinosa

A

Omitted child did not apply because the doctrine of republication saved the original one that included all the kids

54
Q

Gilmore

A

Staute not extended to protect those adoped after the execution of the will

55
Q

Contracts and wills

A

Generates litigation, UPC could reduce with a writing requirement

Cannot be executed without signature UPC 2-514

Trusts + Estates (14 decks)

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