Construction of Wills

Question 1

Construction

Integration

Answer 1

Under the docrine of integration, the will consists of all pages that are:
* Present at the time of execution; and
* Intended to form part of the will

Question 2

Construction

Incorporation by Reference

Answer 2

• Existed at the time the will was executed,
• Is inteded to be incorporated, and
• Is described in the will or codicil with sufficient certainty

Question 3

Specific gift

Answer 3

gift of property that can be distinguished with reasonable accuracy from other property that is part of the testator’s estate

Question 4

General gift

Answer 4

gift of personal property that the testator intends to be satisfied from the general assets of his estate

Question 5

Demonstrative gift

Answer 5

gift that testator intends to be paid from a particular source unless the source is insufficient, in which case the legacy must be satisfied out of the general assets of the estate

Question 6

Residuary

Answer 6

gift of the estate remaining when all claims against the estate and all specific, general, and demonstrative legacies have been satisfied

Question 7

Abatement

Answer 7

Default order:
* Intestate property
* Residuary bequests
* General bequests
* Specific bequests

Question 8

Ademption by Extinction

Answer 8

• Traditionally, if the subject matter of a specific gift is missing, destroyed, or there is a substantial change in the form of the gift, the beneficiary takes nothing.
• UPC: The testator’s intent at the time he disposed of the subject matter of the devise or bequest is examined.

Question 9

Lapse and Anti-Lapse

Answer 9

• Under the common law, if a beneficiary dies before the testator, the gift to the beneficiary lapses.
• Under modern law, if the beneficiary is sufficiently related to the testator, the beneficiary’s surviving issue will take in his place.

Question 10

Survivorship clauses

Answer 10

• Majority: If the will contains a survivorship requirement, and a beneficiary predeceases the testator, anti-lapse does not apply.
• UPC: Even if will has express survivor requirement, courts may still apply anti-lapse and give the gift to the beneficiary’s issue unless additional evidence shows the testator did not want anti-lapse to apply.

Question 11

Class gifts

Answer 11

• Traditional rule: If the will beneficiaries are a class, only surviving members of the class receive the benefit of the will.
• Modern approach: If an anti-lapse statute applies, then the issue of the predeceased member will also take.

Question 12

Patent ambiguities

Answer 12

appeared on the face of the will and were required to be resolved within the four corners of the instrument but without extrinsic evidence

Question 13

Latent ambiguities

Answer 13

were not apparent from a reading of the will and were allowed to be resolved by extrinsic evidence

Question 14

Mistakes

Answer 14

• Extrinsic evidence is admissible to show a mistake in the execution of a will, such as when the testator is unaware that she was signing a will.
• Extrinsic evidence is not allowed if the mistake involves the reasons behind the testator making the will or a particular gift.

Question 15

Reformation

Answer 15

Clear and convincing evidence that:
* There is a mistake of law or fact, and
* The testator would want it to be revised or rewritten