Construction of wills

Question 1

Plain meaning doctrine

Answer 1

• courts give words their plain meaning
• dont use extrinsic evidence
• assume t meant the plain meaning of what he said, even if he meant something else

Question 2

incorporation by reference

Answer 2

• a will may incorporate an extrinsic document that will not testamentary in nature provided:
  1) document is in existence at the time of execution
  2) T intends the document to be incorporated into the will AND
  3) document is described in the will with sufficient certainty as to permit its identification

Question 3

Acts of independent significance

Answer 3

• T can dispose of property based on some act or event that is unrelated tot he execution of the will
• applies to acts that occur in the future (after the execution of the will)

Question 4

lapse and anti-lapse

Answer 4

-at common law- T gift would lapse if an intended B did not survive T
-Texas has an anti-lapse statute which provides alternative disposition for lapsed gifts-2 steps
1) lapsed gift must have been intended for a descendant of the T’s parent
2 )intended B must have left the surviving issue
-person predeceases T

Question 5

anti-lapse as applied to class gifts

Answer 5

• if the class member is covered by the anti-lapse statute and leaves issue, the anti lapse statute controls (TX)
• CL= class gifts were an exception to the lapsed gift rule

Question 6

specific gift

Answer 6

-gift of a particular property

Question 7

general gift

Answer 7

-gift of property satisfied by general assets of the estates

Question 8

demonstrative gifts

Answer 8

-general gift from different source

Question 9

residuary gift

Answer 9

-left over gifts

Question 10

abatement

Answer 10

• no funds in the estate- too poor
• if estate doesn’t have funds to pay debts or make gifts, gifts will be abated- reduced- in a specific order
• unless will says otherwise, gifts abated in this order:
  1) intestate prop (least protected thing)
  2) property in residuary gift
  3) general bequests
  4) specific bequests to others
  5) specific bequests to relatives (most protected)

Question 11

ademption by extinction

Answer 11

• gift is no longer in estate
• will makes a specific devise of property but the specific piece of property is no longer in the estate at T’s death
• T maybe transferred prop or it was destroyed or lost
• traditional rule- it’s extinct and devisee takes nothing
• TX follows this rule, but courts can try to avoid ademption by extinction

Question 12

ademption by satisfaction

Answer 12

• applies when a T tries to satisfy a specific or demonstrative gift either in whole or in part by an inter vivos transfer
• T must intend for the gift to adeem before legacy is rendered

Question 13

ambiguities

Answer 13

• latent ambiguity- only ambiguous due to a fact beyond the will (traditionally, EXTRINSIC)
• patent= ambiguity because it appears on the face of the document (traditionally, NO EXTRINSIC)
• TX= extrinsic to resolve either

Question 14

mistakes

Answer 14

-courts are unlikely to admit extrinsic evidence to correct mistakes to change distribution