Construction of Will

Question 1

What are the four classifications of systems of gifts?

Answer 1

Specific, General, Demonstrative, and Residuary

Question 2

Define Specific classification

Answer 2

property distinguished with reasonable accuracy from testator’s other property

Question 3

Define General classification

Answer 3

property to be satisfied from general estate assets

Question 4

Define Demonstrative Classification

Answer 4

property to come from a particular source

Question 5

Define Residuary classification

Answer 5

property remaining after all specific, general, and demonstrative gifts are made

Question 6

What is something “incorporated by reference” and what may it dictate?

Answer 6

Incorporated by reference refers to another writing not executed with testamentary formalities that may dictate the distribution of T’s property if it:

1) existed at time of execution of the will
2) Is intended to be incorporated; and
3) Is described in the will with sufficient certainty to permit identification

Question 7

What is are acts of independent significance

Answer 7

designation of a beneficiary or disposition by reference to some unattested act or event occurring before or after the execution of the will or T’s death if the act or event has some significance apart from the will

Question 8

When analyzing a testators acts, what is the importance of time?

Answer 8

Recall that the doctrines of republication by codicil and incorporation by reference apply only to events that occurred in the PAST. For example, republication by codicil looks at a will executed BEFORE the codicil, and incorporation by reference requires the document to be in existence BEFORE the execution of the will (unless the UPC exception applies). The acts of independent significance doctrine, however, is the only doctrine that applies to FUTURE acts or events.

Question 9

What is Lapse

Answer 9

If the beneficiary dies before the T, the gift lapses and passes to the residuary beneficiary, or if non, via intestacy

Question 10

What is an anti-lapse statute

Answer 10

if the beneficiary was T’s relative and left issue, then the issue
succeeds to the beneficiary’s gift
* Applies to class gifts
* UPC/Modern trend—also apply to non-probate transfers

Question 11

Residuary lapse is what?

Answer 11

Common Law: a lapsed residuary interest passes by intestacy

UPC: a lapsed residuary interests passes to the remaining residuary beneficiaries

Question 12

When is a gift VOID

Answer 12

when a gift is made to a beneficiary, who unbeknownst to T, is already deceased when the will was executed

**anti-lapse statute applies to void gifts

Question 13

Define abatement

Answer 13

when the assets of the estate are insufficient to pay all debts and legacies, the gifts by will are abated or reduced

Question 14

What order are gifts abated in?

Answer 14

1) intestate property
2) residuary bequests
3) general bequests
4) specific bequests

NOTE: a demonstrative gift is treated as a specific bequest, if it cannot be, then it is treated as a general bequest

Question 15

Define Ademption

Answer 15

the denial of a gift to a beneficiary because the property is not longer in the T’s estate

Question 16

What is Ademption by extinction and when does it apply?

Answer 16

Only applies to specific bequests if the subject matter is missing or destroyed

When the gift is extinct - the beneficiary takes nothing, not even the insurance proceeds or the equivalent in cash

Question 17

What are the two approaches to Ademption by extinction:

Answer 17

• Traditional - “identity theory”
• UPC - “intent theory”

Question 18

What is the traditional Identity theory to ademption by extinction

Answer 18

If the specifically bequeathed item is not a part of the estate at the testator’s death, then it is adeemed.

Question 19

What is the UPC intent theory of ademption by extinction?

Answer 19

Intent of the testator at the time he disposed of the subject matter of the bequest is examined.

The UPC has essentially created a “mild presumption” against ademption and has created several doctrines to avoid it. The bequest to the beneficiary is adeemed if the facts and circumstances establish that the ademption was intended. The UPC permits a beneficiary of a specific extinct gift to inherit the property acquired by the testator as replacement property or, if the testator is owed money relating to the extinction, the outstanding balance. Unif. Probate Code § 2-606(a).

Question 20

What is the common law vs UPC approach to Exoneration of liens?

Answer 20

Common Law - beneficiary of encumbered real property can have the lien paid off

UPC (Most states) - a beneficiary of encumbered real property is not entitled to have the lien paid off

Question 21

As for ambiguities and mistakes, what is the Plain meaning rule?

Answer 21

the Court is reluctant to disturb the plain meaning of a will regardless of mistake

Question 22

How can ambiguities be resolved?

Answer 22

by extrinsic evidence

Question 23

How can mistakes be resolved?

Answer 23

extrinsic evidence is admissible to show that there was a mistake in the will’s execution

Question 24

What is the Rule of Construction?

Answer 24

The will “speaks” for itself rule.

Under the general rule of construction that a will “speaks” as of the time of death, a bequest of a generically described property applies to property that meets the generic description at the testator’s death.