Construction & Enforcement of Will Provisions Flashcards
When can an extrinsic document be incorporated by reference in to a will?
(1) The document was in existence at the time the will was created.
(2) The document is clearly identified by the language in the will.
(3) Intent to incorporate the document was clear.
When will courts consider extrinsic evidence to interpret the testator’s intent?
When the language in the will (a) is ambiguous or (b) does not address a situation at death in some way.
How is after-acquired property treated under a will?
All property acquired after execution of a will passes under the will unless the grantor’s intent to the contrary is clear.
Can a testator disinherit his spouse?
No, the spouse can take the “elective share” that she would have received through intestate succession, even if legally separated.
Can adopted children take under a devise to “my children”?
Yes and the adopted child loses inheritance rights from a natural parent who is not a spouse of the adoptive parent.
Are a spouse’s children from a prior marriage considered children of the testator?
No, unless the testator formally adopts them.
Under the UPC, what is the effect of the death of an heir who has been disinherited?
If the dead heir is survived by children, the heir can still take by representation.
What is a “pretermitted child” statute?
A statute aimed at ensuring that children born after the execution of a will are not inadvertently disinherited.
What are the rights of pretermitted children under pretermitted child statutes?
Typically, the pretermitted child takes what he would have taken under intestate succession, unless the testator had pre-testamentary children and did not provide for them. If all or substantially all of the property is devised to the child’s other parent, then this rule does not apply.
NOTE: Actual language evidencing intent to disinherit the child supersedes.
Are non-marital children included in a devise to “my children”?
- All states grant non-marital children (1) the right to inherit from their mothers and (2) to inherit from their fathers when at least one statutorily defined method of establishing paternity has been satisfied.
What statutorily defined methods of establishing paternity are typically available in determining non-marital children entitled to take under a will?
- father acknowledged paternity in a signed writing
- paternity was adjudicated during the father’s lifetime
The US Supreme Court has held that a statute disallowing inheritance by a non-marital child from her father when _______________ is unconstitutional.
when the father’s paternity has been adjudicated during his lifetime
What is the minimum that a current spouse entitled to in a community property state?
half of the marital property, i.e., property acquired during the marriage, excluding gifts and inheritance only in the decedent’s name
How is the minimum that a spouse is entitled to determined in an equity distribution/uniform probate code state?
The spouse will be able to elect the spouse’s share under the rules of intestate succession.
What is an anti-lapse statute?
Under an anti-lapse statute, if a devisee dies before the testator, then the devise does not “lapse” but passes to the devisee’s heirs “by representation,” absent clear language making the devise contingent upon survival.
