Construction of Wills Flashcards
General Rules of Construction
(1) The cardinal rule is to establish the intent of the testator and to give that intent effect unless violative of public policy.
(2) The intention of the testator must be ascertained from the language of the will, subject to some exceptions.
(3) If the will is ambiguous, it must be read in light of surrounding circumstances.
(4) The will should be construed so as to give effect and purpose to every provision. If all provisions in a will cannot be harmonized, the later provision generally controls, whether it is in the same will or a subsequent codicil.
(5) Words should be given their ordinary meaning.
(6) Technical terms are used in their technical sense.
(7) Wills speak at the time of death and should be construed to pass all property which the testator owns at death, including property acquired after the execution of the will
(8) Testator is presumed not to have desired intestacy.
Intrinsic proof of testator’s intent
Intrinsic Proof of Testator’s Intent
(1) Plain meaning: where a provision is clear and unambiguous, extrinsic proof is not admissible to show that the testator intended to say something other than that which is clearly said in the will.
(2) Ambiguous intent: once the court rules there is an ambiguity as to intent, extrinsic evidence is admissible to resolve the ambiguity
a. patent ambigu
Possible Exclusion of Illegitimate Children
Devise to children—possible exclusion of illegitimates
It is unclear under current law whether a general devise to children
includes illegitimate children.
Nonresiduary Devises
Classification of devises
(1) Nonresiduary devises
a. Specific devise: a testamentary gift of a specific article
or part of an estate which may be satisfied only by delivery of the particular thing.
i. devises of land
ii. devises of clearly identifiable, non-fungible personal property
iii. devises of stock (though in some cases, such grants are general—SC will treat a devise of stock as specific if there is even “slight” evidence of an intent for it to be specific)
b. General devise: payable out of the general assets of the estate; indistinguishable from other things of the kind
c. Demonstrative devise: gift of money or other fungible
goods payable primarily (though not necessarily exclusively) out of a stated fund.
(2) Residuary devises: a residue may be general (covering all assets not otherwise disposed) or limited (covering a specific kind of asset not otherwise disposed).
Ademption
Rules of ademption govern the interpretation of a will when property specifically devised is no longer owned by the testator at his or her death. The devise is said to have been adeemed.
(1) General application
a. only a specific devise can be adeemed
b. to the extent that a specific devise is adeemed, the
devisee receives nothing.
c. if the property that is subject of a specific devise has been sold prior to the testator’s death, the devisee is not entitled to proceeds unless the will provides for that or an exception applies, as follows:
i. unpaid proceeds: if a portion of property specifically devised is no longer owned, a specific devisee has rights in the remaining specifically devised property and
1. any balance of the purchase price still owed by the purchaser
2. any unpaid amount of a condemnation award for a taking
3. any unpaid proceeds on fire and casualty insurance on the property
ii. property foreclosed: when a secyred obligation has been specifically decised, the devisee is entitled to any property owned by testator as a result of having foreclosed upon the security for that obligation
iii. disposition by conservator: if specifically devised property has been sold (or otherwise disposed) by testator’s conservator prior to his death, the specific devisee is entitled to a general pecuniary devise equal to the net sale price, the condemnation award, or the insurance proceeds (unless, if subsequent to the sale, testator’s disability ceases at least one year prior to his death)
Interpreting to Avoid Ademption
(2) Interpreting to avoid ademption: if disposed property was replaced with similar property, applying the rule of construction that “the will speaks as of the day of death,” the devise is not adeemed if the description of the property in the will fits the new property.
Proceeds of Property - Ademption
(3) A gift of the proceeds of property is a specific legacy, and there is no ademption if a testator sells the property, provided the proceeds can be traced. If the testator does not sell the property within his life, the beneficiary may demand the property in lieu of the proceeds.
Specific Devises of Stock
(4) Specific devises of stock: when corporate action has changed the form of stock specifically devised, the specific devisee is entitled only to
a. as much of the devised securities as is part of the estate at the time of testator’s death
b. any additional securities of the same entity owned by
the testator by reason of action initiated by the entity
c. securities of another entity owned by the testator as a
result of a merger, consolidation, reorganization, or
other similar action initiated by the entity; and
d. any additional securities of the entity owned by the
testator as a result of a plan of reinvestment
Demonstrative Devises
(5) Demonstrative devises: whether a testamentary gift is
demonstrative or specific depends upon the intention of the testator, and where there is doubt, a devise is construed to be demonstrative. Demonstrative devises are not adeemed by the disposition of the primary fund, and the devise may be made out of the general assets of the estate. Satisfaction ( Ademption by satisfaction)
Issues may arise as to whether an inter vivos gift to a person who is also a devisee is intended to be in addition to the testamentary devise
Ademption by Satisfaction
Satisfaction ( A d emption by satisfaction)
Issues may arise as to whether an inter vivos gift to a person who is
also a devisee is intended to be in addition to the testamentary devise
or in satisfaction of that devise. Satisfaction is the testate equivalent to
advancements under intestacy.
(1) Presumption is against satisfaction
(2) Satisfaction will be recognized when
a. the will provides for any lifetime gift to be treated as a
satisfaction;
b. testator declares in a contemporaneous (to the gift)
writing that the gift is to be deducted from or is in
satisfaction of the devise; OR
c. the devisee acknowledges in writing that the lifetime
gift is a satisfaction of the devise.
(3) Valuing the lifetime gift: property given during the testator’s
lifetime is valued as of the time the devisee came into possession
or enjoyment or as of the death of the testator, whichever comes
first.
Abatement
Abatement
The order of abatement is the order in which testamentary gifts are
reduced to pay debts or other claims against the estate. The entire
real and personal assets of the decedent are subject to the payment of
debts.
(1) Order of abatement provided in the will: if a will provides for an
order in which gifts are to be abated, that provision controls.
(2) Will silent as to abatement: the order of abatement will be
provided by statute, without regard to whether property is
classified as real or personal:
a. property passing by intestacy
b. residuary devises
c. general devises
d. specific devises
e. abatement within each classification is in proportion to
the amounts of property each beneficiary would have
received if full distribution had been made
(3) Demonstrative devises: For the purposes of abatement, a
demonstrative devise is treated by the statute as specific if the
fund which is the source of payment exists; otherwise, it is
treated as a general legacy.
Exoneratation
Exoneration
If the decedent is personally liable for an obligation secured by a lien
upon his property, the devisee of that property takes subject to the
lien and is not entitled to have the debt obligation paid out of the
decedent’s general estate.
Lapse
Lapse
(1) General rule
a. Non-residuary gifts: When a general or specific devisee
fails to survive the testator, the devise lapses, and the
property that was the subject of the devise passes
under the residuary (if one exists) or by intestacy.
b. Residuary gifts: when a single residuary devisee fails to
survive the testator, the residuary gift lapses and passes
through intestacy. If there are multiple residuary
devisees, and one of them predeceases the testator, the
entire residuary passes to the remaining residuary
devisee or devisees (reversing the common law rule of
“no residue of a residue”)
(2) Anti-laspe exception: when a devise (general, specific, or residuary) is made to a blood-relative of the testator, if the devisee does not survive the testator but has surviving issue, those issue are substituted as devisees, preventing its lapse. For the anti-lapse provision to apply, the following must occur:
a. devisee must be a great-grandparent or lineal descendant of a great-grandparent of the testator;
b. the devisee must predecease (or be treated as having
predeceased) the testator; and
c. devisee must leave issue who survive
Rule for Class Gifts
(3) Rules for class gifts: The death of a class member prior to the death of the testator does not create a lapse, but SC applies its antilapse provision to class gifts if the member is within the range of blood relationship and leaves surviving issue.
