Construction and Interpretation of Probate Documents

Question 1

Mistake in the execution

Answer 1

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

Document/part of one that was mistakenly omitted

Question 2

Knupp v. D.C.

Answer 2

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

Question 3

Effect of mistake in the execution?

Answer 3

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

Question 4

Mistake in the inducement

Answer 4

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

Question 5

Probate takes on a mistake in the inducement

Answer 5

The properly executed will is admitted to probate

Question 6

Construction on a mistake in the inducement

Answer 6

Traditional: no reformation, no litigation

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

Question 7

Benefit + Cost of UPC 2-805

Answer 7

Benefit: intended take the residue as wanted

Cost: gifts to unintended persons, more litigation

Question 8

Plain meaning rule

Answer 8

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

Question 9

No reformation rule

Answer 9

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

Question 10

Estate of Hyman

Answer 10

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

Question 11

Breckner v. Prestwood

Answer 11

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

No reformation

Question 12

Patent ambiguity

Answer 12

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

Question 13

Latent ambiguity

Answer 13

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

Question 14

What evidence can be used to prove a patent defect?

Answer 14

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

Question 15

What evidence can be used to prove a latent defect?

Answer 15

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

Intention of T

Question 16

Modern trend toward ambiguities

Answer 16

Extrinsic evidence allowed to clear them both up

UPC 2-601

Reject plain meaning

Question 17

Smith v. Flowers

Answer 17

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

Question 18

Devises

Answer 18

Assets given

Question 19

Specific devise

Answer 19

“I give X my ring”

Question 20

General devise

Answer 20

“I give X $100”

Question 21

Demonstrative devise

Answer 21

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

Question 22

Residuary devise

Answer 22

X the residue of my estate

Question 23

Class gift

Answer 23

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

Question 24

Devisee

Answer 24

who gets the gift

Question 25

Estate of Rhodes

Answer 25

No issue of lapse because there is an alternative listed

Question 26

Lapse

Answer 26

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

Question 27

Void gift

Answer 27

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

Question 28

Failed gift

Answer 28

Devisees cannot take - falls into the residue

Question 29

Anti-lapse statute

Answer 29

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

Question 30

Lapse is a gift to:

Answer 30

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

Question 31

Lapse statute requirement

Answer 31

1) substitute taker 2) relationship

Question 32

Lapse Statutes create ___________ rules

Answer 32

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

Question 33

McGowan v. Bogle

Answer 33

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

Question 34

Blevins

Answer 34

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

Question 35

Language to survive lapse statutes

Answer 35

"if he survives me" or to "my surviving children" is enough Majority: YES Upc 2-603(b)(3): No

Question 36

Lapse of class gifts

Answer 36

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

Question 37

Estate of Donovan

Answer 37

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

Question 38

Ademption of a Gift

Answer 38

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

Question 39

UPC 2-606 (Ademption of Specific Devisee)

Answer 39

Specific devices CANNOT be adeemed by extinction

Question 40

Strunk v. Lawson

Answer 40

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

Question 41

Stock increase after execution of will common law

Answer 41

Specific devises: desivse increases, number of shraes grow General devises: devise stays the same, number of shares are fixed

Question 42

Stock increase after execution of will UPC

Answer 42

If the testator had enough shares at both execution and at death, the number of shares grows Strunk: NO, UPC: opposite

Question 43

Ademption by satisfaction

Answer 43

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

Question 44

Gifts allowed by adeeming of satisfaction

Answer 44

UPC: ALL Some states: specific gifts cannot be adeemed

Question 45

Special Satisfaction Rule (Parent-Child)

Answer 45

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

Question 46

Exoneration of specific devises: common law

Answer 46

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

Question 47

Exoneration of specific devises: UPC 2-607

Answer 47

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.”

Question 48

Abatement order when transfers cannot be made:

Answer 48

1) property not disposed of by the will 2) residuary devises 3) general devises 4) specific devises

Question 49

Omitted Spouse: UPC 2-301

Answer 49

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

Question 50

Omitted Children: UPC 2-302

Answer 50

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

Question 51

Omitted child DOES NOT TAKE if:

Answer 51

Omission was intentional or was provided for outside of the will

Question 52

Omitted child CAN take when:

Answer 52

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)

Question 53

Espinosa

Answer 53

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

Question 54

Gilmore

Answer 54

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

Question 55

Contracts and wills

Answer 55

Generates litigation, UPC could reduce with a writing requirement Cannot be executed without signature UPC 2-514