Construction Problems Flashcards
What is the general rules of construction?
The will speaks at death. Therefore, the words of the will are only given meaning at the time of the testator’s death.
What is the facts of independence significance doctrine?
permits a testator to effectively change the disposition of his property without changing a will, if acts or events changing the disposition have some significance beyond avoiding the requirements of the will.
What is the general rule when a gift fails because the beneficiary is deceased?
The general rule is that you the gift will fail or fall into the residuary of the testator’s estate.
What are anti lapse statutes?
If a beneficiary dies before the testator and was related by blood and had issue who survived the testator, the gift will not lapse. The beneficiary’s issue will take.
Does survivorship language override an anti-lapse statute?
If you are in a UPC jurisdiction, no. the language is not engouh to override the application of the anti lapse statute. Courts will need more evidence to not apply it.
What happens when a residuary bequest fails under common law?
The invalid shares passes to the testator’s heirs.
What happens when a residuary bequest fails in the UPC?
Any failed gift is given to the residuary.
What is ademption?
If specifically devised property is not in the testator’s estate when the testator dies, the bequest adeems (fails).
How do modern statues handle replacement property when the property has adeemed?
Some statutes state that a beneficiary is entitled to substitute property that was owned by the testator at his or her death if the beneficiary proves that the testator intended the beneficiary to take the substitute property.
How does the UPC handle replacement property when the property is adeemed?
A beneficiary of specifically devised property is entitled to any property owned by the testator at death that the testator acquired as a replacement for the specifically devised property.
How are unpaid insurance proceeds paid?
If property was destroyed by fire or lost by theft and insurance proceeds are paid to the executor of the estate after the death of the testator, some courts hold that those insurance proceeds should be paid to the beneficiary as a substitute .
How are conservator gifts handled when a property is adeemed?
There is no adempton if on behalf of a legally incompetent person sells an asset that is the subject matter of the gift, the beneficiary will receive the value of the gift.
What is accretion?
An increase in number or value.
Under common law, how are accretions handled?
A beneficiary who is given common stock was entitled to additional shares of that stock obtained by the testator through a stock split but not to additional shares acquired as a stock dividend.
Under modern law, how are accretions handled?
Under modern law, all jurisdictions treat stock split and dividends the same way.
Under common law, what is exoneration?
Mortgage on bequeathed real property is paid from the estate.
Under majority law, what is exoneration?
The beneficiary takes real property subject to the mortgage.
What is the slayer statute?
An individual who feloniously and intentionally kills or who is convicted of committing abuse, neglect or exploitation with respect to the decedent forfeits all benefits with respect to the decedent’s estate.
Will disclaimed property pass?
Disclaimed property will pass as if the person disclaiming had failed to survive, so it would pass to residuary unless related to the testator.
Simultaneous death rule
An heir or beneficiary must be alive at the time of the testator’s death.
Under common law, how does the simultaneous death rule change?
Surviving by any amount of time is sufficient.
Under the UPC and Uniform Simultaneous Death Act, how does the simultaneous death rule change?
One must show by clear and convincing evidence that a beneficiary survived the testator by 120 hours.
What is abatement?
The assets of an estate are insufficient to give all of the gifts under someone’ s will, then the gifts to the beneficiaries will have to be reduced.
What is the order of abatement?
Intestate property, residuary gifts, general gifts, demonstrative gifts, specific gifts.
How are gifts to classes distributed at common law?
Under common law, gifts to classes are only distributed if those members survive the tesator. The clause is treated as a survivorship clause.
How are gifts to classes distributed under the UPC?
A gift to a class will not lapse if the beneficiary is related to the tester and leaves issue. The gift will go to the issue.
What does a gift to children include?
biological children, adopted children, nonmaritcal children
