Construction Problems

Question 1

What is the general rules of construction?

Answer 1

The will speaks at death. Therefore, the words of the will are only given meaning at the time of the testator’s death.

Question 2

What is the facts of independence significance doctrine?

Answer 2

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.

Question 3

What is the general rule when a gift fails because the beneficiary is deceased?

Answer 3

The general rule is that you the gift will fail or fall into the residuary of the testator’s estate.

Question 4

What are anti lapse statutes?

Answer 4

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.

Question 5

Does survivorship language override an anti-lapse statute?

Answer 5

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.

Question 6

What happens when a residuary bequest fails under common law?

Answer 6

The invalid shares passes to the testator’s heirs.

Question 7

What happens when a residuary bequest fails in the UPC?

Answer 7

Any failed gift is given to the residuary.

Question 8

What is ademption?

Answer 8

If specifically devised property is not in the testator’s estate when the testator dies, the bequest adeems (fails).

Question 9

How do modern statues handle replacement property when the property has adeemed?

Answer 9

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.

Question 10

How does the UPC handle replacement property when the property is adeemed?

Answer 10

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.

Question 11

How are unpaid insurance proceeds paid?

Answer 11

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 .

Question 12

How are conservator gifts handled when a property is adeemed?

Answer 12

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.

Question 13

What is accretion?

Answer 13

An increase in number or value.

Question 14

Under common law, how are accretions handled?

Answer 14

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.

Question 15

Under modern law, how are accretions handled?

Answer 15

Under modern law, all jurisdictions treat stock split and dividends the same way.

Question 16

Under common law, what is exoneration?

Answer 16

Mortgage on bequeathed real property is paid from the estate.

Question 17

Under majority law, what is exoneration?

Answer 17

The beneficiary takes real property subject to the mortgage.

Question 18

What is the slayer statute?

Answer 18

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.

Question 19

Will disclaimed property pass?

Answer 19

Disclaimed property will pass as if the person disclaiming had failed to survive, so it would pass to residuary unless related to the testator.

Question 20

Simultaneous death rule

Answer 20

An heir or beneficiary must be alive at the time of the testator’s death.

Question 21

Under common law, how does the simultaneous death rule change?

Answer 21

Surviving by any amount of time is sufficient.

Question 22

Under the UPC and Uniform Simultaneous Death Act, how does the simultaneous death rule change?

Answer 22

One must show by clear and convincing evidence that a beneficiary survived the testator by 120 hours.

Question 23

What is abatement?

Answer 23

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.

Question 24

What is the order of abatement?

Answer 24

Intestate property, residuary gifts, general gifts, demonstrative gifts, specific gifts.

Question 25

How are gifts to classes distributed at common law?

Answer 25

Under common law, gifts to classes are only distributed if those members survive the tesator. The clause is treated as a survivorship clause.

Question 26

How are gifts to classes distributed under the UPC?

Answer 26

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.

Question 27

What does a gift to children include?

Answer 27

biological children, adopted children, nonmaritcal children