Construction and Interpretation of Probate Documents Flashcards
Mistake in the execution
Document that is mistakenly executed or part that is mistakenly included in the executed document
Document/part of one that was mistakenly omitted
Knupp v. D.C.
No legatee was named in the abovementioned paragraph…. cannot fill in the blanks
Effect of mistake in the execution?
Traditional: words no executed in compliance with the Wills Act will be given effect or admitted to probate, no words allowed to include
Mistake in the inducement
Mistake of fact outside the instrument that effect the formulation of the intent of the testator
Probate takes on a mistake in the inducement
The properly executed will is admitted to probate
Construction on a mistake in the inducement
Traditional: no reformation, no litigation
UPC 2-805: NOT WIDELY USED, but can use C+C evidence to conform to the T’s intention
Benefit + Cost of UPC 2-805
Benefit: intended take the residue as wanted
Cost: gifts to unintended persons, more litigation
Plain meaning rule
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
No reformation rule
Subjective intent of D will not be a basis of reforming the instrument
Estate of Hyman
Mistake in the will file that there has to be a plain meaning on what the will says, no extrinsic evidence allowed
Breckner v. Prestwood
Clear conflict in the will, evidence of where things should go, Court applies enjusten generis
No reformation
Patent ambiguity
an uncertainty which appears on the face of the [instrument]
Latent ambiguity
one which is not apparent on the face of the [instrument] but is disclosed by some fact collateral to it
What evidence can be used to prove a patent defect?
Circumstances of the testator’s life, friendship, etc.
What evidence can be used to prove a latent defect?
Circumstances of the testator’s life, friendship, etc.
Intention of T
Modern trend toward ambiguities
Extrinsic evidence allowed to clear them both up
UPC 2-601
Reject plain meaning
Smith v. Flowers
Latent ambiguity resolved to get information about the will based on T’s intent
Devises
Assets given
Specific devise
“I give X my ring”
General devise
“I give X $100”
Demonstrative devise
I give $100 from my sale of my stock to X (other sources make up the rest of the gift)
Residuary devise
X the residue of my estate
Class gift
Class minded gift “to my children” a group is the main focus
Devisee
who gets the gift
Estate of Rhodes
No issue of lapse because there is an alternative listed
Lapse
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
Void gift
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
Failed gift
Devisees cannot take - falls into the residue
Anti-lapse statute
Provide substitute taker in some situation, but not close to all
Lapse is a gift to:
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
Lapse statute requirement
1) substitute taker
2) relationship
Lapse Statutes create ___________ rules
default: specify the person for the gift to automatically be made to
McGowan v. Bogle
“those who survive me” works around the substitution opt out of the lapse statute
Blevins
“Residue and remainder of my estate including devises that lapse to my nephews” NOT enough to work around lapse
Language to survive lapse statutes
“if he survives me” or to “my surviving children” is enough
Majority: YES
Upc 2-603(b)(3): No
Lapse of class gifts
Allowed so that one dead member of the class can be replaced by a substitute taker (typically a descendant of the dead person)
Estate of Donovan
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
Ademption of a Gift
Property gifted in a will is not in the estate’s possession at the time of the testator’s death
UPC 2-606 (Ademption of Specific Devisee)
Specific devices CANNOT be adeemed by extinction
Strunk v. Lawson
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
Stock increase after execution of will common law
Specific devises: desivse increases, number of shraes grow
General devises: devise stays the same, number of shares are fixed
Stock increase after execution of will UPC
If the testator had enough shares at both execution and at death, the number of shares grows
Strunk: NO, UPC: opposite
Ademption by satisfaction
occurs when a party gives someone a gift initially intended to be included in their will while that party is still alive
Gifts allowed by adeeming of satisfaction
UPC: ALL
Some states: specific gifts cannot be adeemed
Special Satisfaction Rule (Parent-Child)
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
Exoneration of specific devises: common law
The estate pays the mortgage on the property. And a court could say that a
pay-just-debts clause mandates the same.
Exoneration of specific devises: UPC 2-607
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.”
Abatement order when transfers cannot be made:
1) property not disposed of by the will
2) residuary devises
3) general devises
4) specific devises
Omitted Spouse: UPC 2-301
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
Omitted Children: UPC 2-302
Only applies if the testator became the parent of the child AFTER the will was executed
Omitted child DOES NOT TAKE if:
Omission was intentional or was provided for outside of the will
Omitted child CAN take when:
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)
Espinosa
Omitted child did not apply because the doctrine of republication saved the original one that included all the kids
Gilmore
Staute not extended to protect those adoped after the execution of the will
Contracts and wills
Generates litigation, UPC could reduce with a writing requirement
Cannot be executed without signature UPC 2-514
