Constructive Wills

Question 1

What are the four classification of gifts?

Answer 1

Specific
-> property distinguished with reasonable accuracy from T’s other property

General
-> property to be satisfied from general estate assets

Demonstrative
-> property to come from a particular source

Residuary
-> property remaining after all specific, general, and demonstrative gifts are made

Question 2

When can another writing be incorporated by reference when it hasn’t been executed with testamentary formalities and dictates distribution of T’s property?

Answer 2

Another writing not executed with testamentary formalities may dictate the distribution of T’s property if it:
-> existed at time of execution of the will
-> is intended to be incorporated
AND
-> is described in the will with sufficient certainty to permit identification

Question 3

What are acts of independent significance?

Answer 3

A will may provide for the designation of a beneficiary or the amount of a disposition by reference to some unattested act or event occurring before or after the execution of the will or before or after the testator’s death, if the act or event has some significance apart from the will.

Question 4

What happens if there is a lapse?

Answer 4

If the beneficiary dies before T
-> the gift lapses and passes to the residuary beneficiary
-> if there is no residuary beneficiary then it passes via intestacy

Question 5

How do anti-lapse statutes work?

Answer 5

If the beneficiary was T’s relative
-> AND left issue (meaning the beneficiary died but had an issue - aka surviving descendant of beneficiary)
-> THEN the issue succeed to the beneficiary’s gift

Question 6

Can an anti-lapse statute apply to class gifts as well?

Answer 6

Yes it can.

Question 7

What does the UPC/Modern Trend also allow the anti-lapse statue to apply to?

Answer 7

Non-probate transfers
-> transfers that happen outside of the probate process (court supervised process of distributing person’s estate after they pass)
-> e.g. a life insurance policy

Question 8

How does the CL and UPC differ in dealing with a residuary lapse?

Answer 8

CL
-> a lapsed residuary interest passes by intestacy (“no residue of a residue”) (aka goes to T’s other descendants)

UPC
-> a lapsed residuary interests passes to the remaining residuary beneficiaries
-> only applies when there are two or more residuary beneficiaries

Question 8

What are void gifts?

Can the anti-lapse statute apply to void gifts?

Answer 8

Gift to a beneficiary, who unbeknownst to T, is already gone when the will was executed.

Anti-lapse statute also applies to void gifts.

Question 9

What does it mean for a gift to be abated?

When will gifts be abated?

Answer 9

Means gift will be reduced.

Gifts by will are abated when the assets of the estate are insufficient to pay all debts and legacies.

Question 10

What is the order of abatement?

Answer 10

The testator may indicate his intended order of abatement, but if he fails to do so, the law prescribes an order.

If not otherwise specified in the will, gifts are abated in the following order:
-> intestate property
-> residuary bequests
-> general bequests
AND
-> specific bequests

Question 11

What is a demonstrative gift?

How is a demonstrative gift treated in an abatement?

Answer 11

A demonstrative gift is a general gift, but made payable out of a particular designated fund or source of property in the estate of the testator.

It is treated as a specific bequest for abatement purposes, if it cannot, then it is treated as a general bequest.

Question 12

What is a ademption?

Answer 12

The denial of a gift to a beneficiary because the property is no longer in T’s estate.

Question 13

What kinds of gifts does the doctrine of ademption apply to?

What does it mean for a specific request to be “extinct”?

Answer 13

Specific bequests.

The specific bequest is missing or destroyed.

Question 14

What is the “identity theory” of ademption by extinction?
-> is T’s intent a factor?
-> substantial change in the nature of the bequeathed item?

Answer 14

The intent of the testator is not relevant in most states if the bequest is extinct.

If the specifically bequeathed item is not a part of the estate at the testator’s death, then it is adeemed.

A substantial change in the nature of the subject matter of a bequest will operate as an ademption, but a merely nominal or formal change will not.

Question 15

How does the UPC’s “intent theory” work?

Answer 15

Under the UPC, T’s intent at the time he disposed of the subject matter of the bequest is examined.
-> UPC has essentially created a “mild presumption” against ademtpion and has created several doctrine to avoid it

The bequest to the beneficiary is deemed if the facts and circumstances establish that the ademption was intended.

Question 16

What doctrines provide the beneficiary with relief under the UPC’s “intent theory” if T did not intend for the ademption?

Answer 16

Replacement property doctrine
-> beneficiary of a specific extinct gift to inherit the property acquired by T as replacement property of the specific extinct gift

Outstanding balance doctrine
-> If T was owed money relating to the extinction, then beneficiary is entitled to the outstanding balance

IF neither of the two above doctrines apply THEN the beneficiary of a specific gift is entitled to money equivalent to the value of the specific property as of the date of disposition if ademption is inconsistent with T’s
-> intent
OR
-> plan of distribution

Question 17

What is the exoneration of liens doctrine under CL and UPC?

Answer 17

CL
-> a beneficiary of encumbered real property can have the lien paid off by T’s estate

Most states (including UPC)
-> a beneficiary of encumbered real property is not entitled to have the lien paid off

Question 18

What is an ademption by satisfaction?

What does the UPC separately require for this to be allowed?

Answer 18

A gift may be satisfied by inter vivo transfer of property after the execution of the will if that is T’s intent
-> aka gift is in will but given before T dies to same person who would receive it in the will

UPC
-> presumes no ademption by satisfaction ABSENT an express writing

Question 19

What Is the plain meaning rule with regards to a mistake?

Answer 19

Court is reluctant to disturb the plain meaning of a will regardless of the mistake.

Question 20

Can ambiguities be resolved by extrinsic evidence?

What about for mistakes?

Answer 20

Ambiguities
-> can be resolved by extrinsic evidence

Mistakes
-> extrinsic evidence is admissible to show that there was a mistake in the will’s execution

Question 21

What is the rule of construction?

Answer 21

The will “speaks” at the time of T’s death
-> a bequest of a generically described property applies to property that meets the generic description at the testator’s death

Question 22

How are conditional wills felt with by the courts?

Answer 22

If possible, when will’s validity is conditioned on an event, courts will try to construe excess language as mere explanation rather than a barrier to validity.
-> courts don’t like conditional wills