Construction of Wills

Question 1

Plain Meaning

Answer 1

General way to interpret terms unless will states otherwise

Question 2

Incorporation by Reference

Answer 2

1. Document in existence at time of execution (not required if UPC and personal property)
2. Testator intends document to be incorporated into the will
3. Document described in the will with sufficient certainty to permit its identification

Question 3

Acts of Independent Significance

Answer 3

A testator can dispose of property based on some act or event that is unrelated to the execution of the will

Question 4

Lapse

Answer 4

CL- Testamentary gift would fail and go back into residuary if intended beneficiary did not survive the testator

Question 5

Anti-Lapse Statutes

Answer 5

No lapse if predeceasing beneficiary was:

1. In protected relationship; and
2. Survived by issue

Question 6

Class Gifts

Answer 6

CL- If member lapsed, rest of class shared their gift
UPC- applies anti-lapse

Question 7

Abatement

Answer 7

If estate doesn’t have sufficient funds to pay debts or make gifts, they are reduced (first to last):

1. Property not disposed of by will
2. Residuary
3. General bequests
4. General bequests of cash, stocks, and bonds
5. Specific bequests to other takers
6. Specific bequests to T’s issue
7. Specific bequests to T’s spouse

Question 8

Ademption by Extinction

Answer 8

Will makes devise of specific property no longer in the estate
CL- identity theory; no gift
UPC- intent theory; tries to find replacement gift based on intent

Question 9

Ademption by Satisfaction

Answer 9

Specific gift satisfied in whole or part by inter vivos gift

1. Testator must intend for gift to adeem; and
2. Intent must be supported by a writing

Question 10

Ambiguities

Answer 10

CL- extrinsic evidence okay for latent (hidden) but not patent ambiguity
UPC- extrinsic evidence allowed for both types

Question 11

Mistakes

Answer 11

Extrinsic evidence only allowed to show mistake in execution, not contents