Construction of a Will Flashcards
Plain Meaning Doctrine’s applicability to wills?
We assume that the testator meant the plain meaning of what he said even if he meant something else. The will can alter the plain meaning doctrine.
What are the requirements for incorporation by reference?
- The document is in existence at the time of execution (not required under the UPC for personal property)
- The testator intends the document to be incorporated into the will.
- The document is described in the will with sufficient certainty to permit its identification.
What are acts of independent significance?
Acts outside of the execution of the will that the testator can use as prerequisites to certain bequests. This doctrine applies to acts in the future.
What is a lapse?
When an intended beneficiary predeceases the testator.
What happens to lapsed gifts without an anti-lapse statute?
The common law rule is that the gift goes to the residuary.
What do anti-lapse statutes accomplish?
They allow lapsed gifts to go to the issue of the lapsed gift’s intended recipient if they are a relative of the testator.
Where does a class gift go if a class member is lapsed and they are not a relative of the testator/there is no anti-lapse statute?
That gift gets distributed to the class.
Where does a class gift go if the intended recipient is a relative and there is an anti-lapse statute?
That gift will go to the issue of the lapsed intended class gift recipient.
What is the abatement hierarchy?
1) Intestate property.
2) residuary
3) general bequests
4) general bequests of cash, stocks, and bonds
5) specific bequests to other takers
6) specific bequests to Testator’s issue
7) specific bequests to testator’s spouse
What is ademption?
When the testator makes a devise of property, but the specific piece of property is no longer in the estate.
What is the common law rule of ademption?
If ademption occurs, then the devise will be frustrated and the devisee takes nothing. (Identity Theory)
What is the UPC rule of ademption?
You look to the TESTATOR’S INTENT at the time that she disposed of the property to determine if she intended the ademption. If she did not intend the ademption, then the intended devisee can receive a replacement gift.
What is ademption by satisfaction?
When the testator makes an intervivos transfer of property from his will. Testator must intend for the gift to adeem and that intent must be supported by a WRITING.
What is a latent ambiguity?
A question that arises about the text of a will that you can’t tell just by reading the will on its face.
What is a patent ambiguity?
An issue that you can see on the face of the will.
